Giraud v. Beach , 3 E.D. Smith 337 ( 1854 )

By the Court. Ingraham, First J.

The plaintiffs, as members of Hose Company Ho. 12, in the city of Hew York, sue the defendants to recover from them damages for a libel published in the Hew York Sun, of which libel one of the defendants was the author and the other the publisher.

The libel charges that a hat was stolen from Stagg by some of the members of that hose company, but does not specify the particular persons referred to.

Upon proof of the admissions of the parties as to the authorship and publication of the libel, the plaintiffs’ counsel produced a certificate of the clerk of the city and county of New York that certain persons therein named were the members of Hose Company No. 12, differing as to four of the names from' those named as plaintiffs; and such certificate having been, received in evidence without objection, he then moved to strike out four names as plaintiffs, and insert the correct names in their place; which motion was granted by the court, and the defendants excepted thereto. Of the propriety of granting such a motion on the trial in an action of libel, even if the court has the power so to do, I think there may well be doubt. The defendants came to trial in such an action with the right to show the plaintiffs’ characters in mitigation of damages, and in the present case the answer of one of the defendants expressly denies that the plaintiffs were the persons referred to in the publication, and yet after the trial was commenced the names of some of the plaintiffs were erased and others substituted as plaintiffs, without imposing any terms or allowing the defendants any opportunity to prepare for a defence after such change had been made.

The plaintiffs are always supposed to know their partners or associates, and a stricter rule in regard to an error in this respect is generally enforced than in regard to errors of another kind. It is not necessary, however, to put the decision of this case on this exception.

The justice charged the jury that the plaintiffs, if the jury believed they were the persons alluded to in the article complained of, and that they had been damaged thereby, could recover, to which the defendants’ counsel excepted.

He further charged “ that as the article was general in its language, and made no specific allusion to any particular person in the company, the plaintiffs had a right to come into court, and by putting them on their defence demand to know from the defendants who were the persons to whom they referred.” To this also the defendant excepted. He further charged that when any particular class of the community are pointed out, they may bring and sustain the action to which there was an exception. And further—if the jury find the plaintiffs to be the persons referred to individually and jointly, and have sustained collective injury, they may award such damages as they think the case demands.

The objection that the defendants should have demurred is not well taken. In no case is a defendant required to demur because the plaintiffs have joined too many as plaintiffs. Whenever the error appears the defendant may take advantage of it. If no cause of action was made out in béhalf of all the plaintiffs, the defendants had the right to take advantage of it on the trial; and if the action could not be maintained by the plaintiffs jointly, then no cause of action by them together is made out.

The plaintiffs are members of a hose company, but as such they are not engaged in any business which could be injured by a libel against the persons forming such company.

It cannot be pretended that in a pecuniary point of view the hose company could be injured. No evidence has been furnished of any such damage; and it seems to me impossible to imagine how any such damage could be occasioned to the plaintiffs collectively.

The only ground upon which a recovery could be had is, that the plaintiffs’ characters might be affected by the publication, and the extent of that injury always depends upon the kind of character which the plaintiffs possess. While the character of one might be affected injuriously, that of another would not be injured by general reports such as formed the libel in question. If a joint recovery in favor of all could be sustained, a man whose character is bad, being associated as plaintiff with one whose character is good, would share equally with him in the verdict.

Where a firm is libelled by matter applying to the firm, or to any of its members, in such a manner as to affect the business of the firm, there an action in the name of the firm may be maintained upon the ground that the injury extends to the business of the firm. This has been decided in this court, and the decision on that point was approved by the Court of Appeals in the same case. ^(a)

I know of no case in which it has been held that a body of men, having no pecuniary interest In their associated character, either as members of a company or directors of a corporation, or trustees of any society, or any particular class, trade, or association, may unite in an action for a libel against such body, class, trade, or association, much less where the libel only charges the offence to have been committed by some of them. .

Without deciding whether this action could have been maintained by any one of the plaintiffs, because the libel did not charge the offence upon all, I think there can be no doubt that a joint action in favor of all cannot be sustained. They are not all libelled, as the offence is only charged against ■ some of that body, and as a body there-is no injury sustained by them, and they have no community of interest for injury to which such an action can be maintained.

If the libel is specific enough to authorize any one of the plaintiffs to maintain the action, it would be for damages to him personally, and he would in such an action be entitled to recover. (11 Johns. R. 54; 12 ib. 475; 9 ib. 215.)

In most of the cases referred to by the plaintiffs’ counsel the right to maintain such an action rests upon the universality of the charge, so that each of the parties composing the body or class may be said to be specially referred to ; but where the charge is only upon some of a class or body, and not upon all, a different rule prevails. (Ryckman v. Delavan, 25 Wend. 199.) In such a case the only remedy is by indictment, and no civil remedy is allowed.-

It is not necessary, however, here to decide whether one of the company could maintain this action. As a body or company, it appears to me there is no ground upon which the plaintiffs can recover.

The court below also erred in instructing the jury that the plaintiffs had a right to. come into court, and by putting the defendants on their defence demand to know from the defendants to whom they referred. This was equivalent to telling the jury that the defendants were bound to show which of the plaintiffs were referred to in the libel when all of the company brought the action. The plaintiffs in an action for a libel, before they can recover, must show affirmatively that the libel referred to them, and until that fact is made out the defendants are not called on to make any defence. Where the libel refers to one of two persons, such person must first establish that he was the person referred to, and he cannot call upon the defendant to prove to which of the two the charge applied.

Other parts of the charge were, I think, also erroneous, which it is unnecessary now to consider. In no view that I can take of the questions raised in this case, can the action be maintained.

The judgment must be reversed as to the appellant Stagg.

Adjudged accordingly. ^(a)

(a) See Taylor v. Church, 1 E. D. Smith, 279.

(a) а) A motion was subsequently made to correct or alter the entry of the judgment upon the appeal above determined. See Giraud v. Stagg, impleaded, etc., post, January term, 1855.—Rep.