New York, Libel Per Quod, and Special Damages: An Unresolved Dilemma
New York , Libel Per Quod, and Special Damages: An Unresolved Dilemma
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1 New York, Libel Per Quod, and Special Damages: An Unresolved Dilemma , 27 Fordham L. Rev. 405 (1958). Available at: , USA
Committee amended the bill to permit only a reasonable delay, in which form
the bill was passed by the Senate. Congress adjourned before a compromise
between the two versions could be made.
It is reasonable to predict that Congress will enact some legislation in the
next session to modify the McNabb rule. If the Senate version of the proposed
legislation is finally enacted it is doubtful that it would have much effect on
the present status of the doctrine. It is difficult to conceive that the Court
would find any delay as reasonable in the light of its past decisions. If the
legislation takes the form of the House bill then the McNabb rule would
become only historically significant. However, in view of the determination
of the Court to thwart improper police tactics it is entirely possible that the
due process limitation of the Supreme Court doctrine would be extended to
include delay in arraignment type situations.63 It has been suggested 6 4 that
such a development would eliminate the double standard of the McNabb rule
and rest the attitude of the Court toward delay in arraignment upon sound
YORK, LIBEL PER QUOD, AND SPECIAL DAMAGES:
AN UNRESOLVED DILEMMA
It is generally accepted that when a publication is defamatory of the plaintiff
upon its face it is actionable without proof of special damages,' or more briefly,
that a libel per se is actionable per se. Traditionally, a publication libelous
per quod, i.e., where it is necessary for the party libeled to plead extrinsic
facts to show the defamation, was also, on proof of the extrinsic facts,
actionable per se.2 While this traditional view is still adhered to in some states,a
other jurisdictions distinguish the two types of libel and require a different form
of pleading for each.4 The usual approach in the latter jurisdictions is to treat
libel per quod in a category with slander, that is, with the exception of certain
types of defamatory imputations, to make it actionable only after proof of
Statements of the New York law on this subject have, for some time now,
been confused and confusing. One authority has suggested that New York
now adheres to the traditional view and considers all libel actionable per se.6
However, the New York Court of Appeals in 1915 took a contrary position,
stating in O'Connell v. The Press Publishing Co.7 that where a publication is
not libelous on its face "the facts showing . . . damage must be fully and
specifically set forth in the complaint. General allegations of damage are not
sufficient." 8 It is the purpose of this comment to consider the validity of the
O'Connell decision and inquire into its present status as the law of New York.
The O'Connell case was concerned with a newspaper publication of an
alleged libel. The court held as a matter of law that the publication was not
libelous per seY It accepted as settled New York law that a publication, not
defamatory upon its face, imposes liability only for the pecuniary damage
resulting from the defamation and that a plaintiff, to recover these damages,
must specifically plead and prove them. The O'Connell opinion made no
attempt to review the merits of the issue before the court but, in holding that
an action for libel per quod required proof of special damage, the court relied
solely on four prior New York decisions.' ° A re-examination of these decisions
attests that the O'Connell case may rest on a very precarious foundation.
The first of the four cases cited was Bassell v. Elmore" where the action
was one for slander. It was shown that the defendant called the plaintiff a
public prostitute. The statement was made prior to the passage of the New
York statute which makes imputations of unchastity to a woman slanderous
per se.12 The court said that, since the complaint was not one charging slander
per se, it was necessary for the plaintiff to allege special damage. The decision
in the Bassell case was merely an affirmation of the general rule that actions
for slander require proof of special damage, unless the slander charged is one
that is categorized as slander per se.13 It was not an appropriate precedent
for the O'Connell holding if only for the fact that the latter case was an action
O'Connell also cited Stone v. Cooper.'4 The only issue before the court in
the latter case was whether the publication sued upon was, in fact, a libel,
although one of the concurring opinions is somewhat confusing 15 and appears
6. Prosser, op. cit. supra note 1, § 93, at 587.
7. 214 N.Y. 352, 108 N.E. 556 (1915).
8. Id. at 358, 108 N.E. at 557.
11. 48 N.Y. 561 (1872).
12. Laws of 1871 Chap. 219-An Act to provide redress for words imputing unchastity
to a female. This act was passed on March 29, 1871. It did not operate to make the
slander per se actionable because the slander was uttered in the year 1862 and the statute,
by its terms, applied only to words spoken after the date of its passage.
13. See note 5 supra.
14. 2 Denio 293 (N.Y. 1845).
15. There were five separate opinions written in support of the defendant's contention.
Only one of these made any reference to special damages.
to lend some support to the proposition that all libel is not per se actionable.
The plaintiff did not introduce any extrinsic evidence to show the defamatory
nature of the allegedly libelous publication. To sustain the action, therefore,
it was necessary to find that the publication was libelous on its face. The
Chancellor's opinion added:
Where from the nature of the charge, -therefore, in connection with other facts stated
in the plaintiff's declaration, no .. .injury or loss will necessarily or even probably
result to him in consequence of the publication of such charge, he cannot recover
damages as for a libel, without averring and proving that special damage has been in
fact sustained by him in consequence of the publication of the false and unfounded
The opinion at this point was concerned with the distinction between that
which is libelous, be it per se or per quod, and that which is not libelous. The
reference to special damage, the only such reference in any of the opinions,
was inserted because the Chancellor reasoned, proof of special damage by the
plaintiff would tend to establish the defamatory nature of the publication.
There was no discussion of the need to allege special damage once a libel has
been proved. Yet it is for the latter point that the case was cited in the
Next in the line of O'Connell reliance was Crashley v. Press Publishing Co. 17
Craskley relied heavily upon Stone v. Cooper. It is, indeed, a mere reiteration
of the Stone doctrine.' 8 The confusion sometimes put upon the Stone opinion
was thus continued by Crashley.
The Crashley case did not distinguish between libel per se and libel per
quod. Rather, it held that once the defamatory nature of a publication is
proved by extrinsic facts, there exists a libel per se.' 9 Although Crashley never
touched on the question of when a libel is actionable, it would seem that, since
the case viewed all libel as libel per se, it would better support the proposition
that all libel is actionable per se.
The fourth and final case cited in support of the O'Connell decision was
McNamara v. Goldan.20 There plaintiff, in an action for libel, proved that the
defendant had falsely charged him with writing certain anonymous letters.
Since neither the objectionable nature of the letters nor the name of the
plaintiff was mentioned in the publication, the court held there was no libel per se
and said, "It was, therefore, necessary for the plaintiff to include in his
com16. 2 Denin at 300.
17. 179 N.Y. 27, 71 N.E. 258 (1904).
18. Id. at 34, 71 N.E. at 260. The court said: "The complaint, showing no publication
actionable per se, is defective for alleging no special pecuniary damages." For this
proposition it cited Stone v. Cooper. The problem in the Crashley case, as in the Stone case, was
whether the publication sued upon was libelous. In neither case did the plaintiff succeed in
proving a libel; therefore, the issue presented in the O'Connell case never arose.
19. 179 N.Y. at 34, 71 N.E. at 260. In its pertinent part, the opinion read: "[lIt is
argued that the words in the article ... were libelous per se. If the complaint had alleged the
libelous meaning by innuendo, to wit, that the words meant that the plaintiff's reputation,
or character, was bad, that would have been so."
20. 194 N.Y. 315, 87 N.E. 440 (1909).
plaint allegations of extrinsic facts to show that the words used in the letter
are actionable.1 21 After recognizing this distinction between libel per se and
libel per quod, the opinion continued, "As the letter is not defamatory and
libelous per se it was also necessary for the plaintiff to allege and claim special
damages arising from the publication of the letter.122 The only case cited as
support for this proposition was Crashley v. The Press Publishing Co. which, as
noted, does not really stand for this proposition at all. At any rate, the
statement in the McNamara case that special damage must be pleaded in an action
for libel per quod is dictum since the plaintiff therein failed to prove any libel.
The McNamara case offers no valid basis for the O'Connell decision. But
whatever its shortcomings, and however false or weak the premises upon which
it rests, 23 O'Connell v. The Press PublishingCo. stands as law. In more recent
years, however, other decisions, leaving unmolested the "settled" law of the
O'Connell case, have emasculated its doctrine and have served to further
confuse the law.
Eight years after the O'Connell decision, the court of appeals cast that
holding in doubt by its memorandum decision in Smith v. Smith.2 4 In the
latter case the defendant filed an application for a marriage license stating
therein that it was to be his first marriage and that he was not a divorced
person. These statements, which were in no way defamatory upon their face,
were published in several newspapers. The plaintiff brought an action for libel,
alleging as a fact that she was once married to the defendant. Her contention
was that the publication amounted to a statement that she had been his
mistress during the time of their marriage. She alleged no special damage.
The court of appeals affirmed an order denying defendant's motion for
judgment on the pleadings, thus clearly suggesting that special damage need not
be alleged even in those cases where the introduction of extrinsic facts is
necessary to show a libel.
In Sydney v. MacFadden2,5 the court again appeared to retreat from the
O'Connell rule. There, the defendant newspaper reported that Doris Keane,
a well-known actress, was 'Fatty' Arbuckle's latest love interest and that there
were rumors of marriage between them. The plaintiff, Doris Keane, was a
married woman but she did not allege this fact. Neither did she allege any
special damage. The court, relying on the O'Connell decision, said, "As no
special damage was pleaded, the plaintiff can only maintain her complaint . . .
by establishing this article is libelous per se." 26 Then it was decided that the
publication sued upon was libelous per se in spite of the fact that the
defamatory meaning depended entirely upon the extrinsic fact that Doris Keane was
21. Id. at 321, 87 N.E. at 442.
22. Id. at 321, 87 N.E. at 442 (emphasis added).
23. Mr. Seelman, in his work on The Law of Libel and Slander in the State of New
York, says that the O'Connell rule that a libel, not defamatory upon its face, is actionable
only after proof of special damage, is "without foundation in fact or law." Seelman, Libel
and Slander ff 46 (1933).
24. 236 N.Y. 581, 142 N.E. 292 (1923).
25. 242 N.Y. 208, 151 N.E. 209 (1926).
26. Id. at 211, 151 N.E. at 210.
already married. The court recognized that the publication said nothing about
Doris Keane being a married woman but reasoned that "neither does it say
that she is alive, or of age, or a woman capable of being married. It speaks
of Doris Keane and gives her picture. This draws with it all that Doris Keane
is,--her standing, her position in society, and her relationship in life."2 7 It
would appear that the court strained to find a libel per se in the Sydney case
simply to escape the rule of the O'Connell decision. In so doing it bad to
confuse the distinction between libel per se and libel per quod.28 In the Sydney
case the court had an opportunity to reconsider and perhaps readjudicate the
O'Connell rule but it chose to add bad logic to bad law and in so doing lent
added weight to the unsound principle of O'Connell.
This full grown ambiguity was later illustrated in two lower court decisions.
The first of these, Kuhn v. Veloz,2 9 was similar to the Sydney case and might
have been decided on the same principle. But the court here chose rather to
rely strictly upon the O'Connell doctrine. The plaintiff in the Kuhn case
was a fashion designer. An article, attributed to the defendants, was published
along with a picture of the plaintiff. The article referred to her as "chief
seamstress" for the actress, Yolanda Veloz. It stated further that the defendants,
Frank and Yolanda Veloz, designed many of the growns described in the article.
The plaintiff alleged extrinsic facts to establish that she was a well-known
designer of gowns and had designed all the gowns described. Her contention
was that the publication injured her in her occupation. She alleged no special
damage. The court upheld the defendant's motion to dismiss the complaint
for failure to state facts sufficient to constitute a cause of action. If precedent
be controlling it would seem that the court might have applied the reasoning
of the Sydney case, however faulty, to these facts. The plaintiff was named
and her picture was published. Why did these not draw with them all that
Kathryn Kuhn was, "her standing, her position in society, her relationship
in life"? Should not this have been held to be libelous per se as was the libel
in the Sydney case?
A second lower court decision confounded the confusion because on its facts
it was substantially similar to Smith v. Smith and yet, unlike the Smith case,
it justified its decision with the O'Connell rule. In Solotaire v. Cowles
Magazines, Inc.,30 it was shown that the defendant published a magazine article
which described the plaintiff's husband as'a bachelor. The plaintiff pleaded
the fact of her marriage to the defendant, the fact that she had a 21 year old
son, and the fact that she, her husband and her son had maintained a family
27. Id. at 213, 151 N.E. at 210.
28. The Sydney decision gave no indication as to how many facts about an individual
the publication of his name or picture "draws with it." Would such a publication draw
with it the fact that an individual had children, was a member of certain organizations, or
was in a particular business or profession? If the mere publication of one's name and
picture carries with it all facts concerning the person, then the concept of libel per quod
would disappear in such cases. It is doubtful that the Sydney case was intended to so
change the law.
29. 252 App. Div. 515, 299 N.Y. Supp. 924"(lst Dep't 1937).
30. 107 N.Y.S.2d 798 (Sup. Ct. 1951).
domicile for the past seventeen years. She did not plead special damage.
Plaintiff's contention was that the article imputed unchastity to her by stating in
effect that she and her husband were not really married. The court said,
"When, however, extraneous facts must be shown to make a publication
libelous, there is the concomitant requirement that pecuniary damage resulting
from the publication be pleaded and proved,"' citing, of course, the O'Connell
In the Kuhn case the defamation was certainly one affecting the plaintiff
in her business or calling in life. The defamation in the Solotaire case involved
the imputation of unchastity to a woman. Thus these two cases produce the
paradoxical result of denying a plaintiff recovery for the printed publication
of words, which when orally published with the necessary extrinsic facts
established, would be per se actionable as slander. 32 As between libel and
slander, libel has always been considered the greater wrong, and yet here, for
the same words, in the same circumstances, a plaintiff has a cause of action
for slander but not for libel.
If it is not clear enough that the O'Connell case was unsound when decided,
it is certain that its application has produced not only confusion but injustice.
It protects the defamer at the expense of his victim. Is it not time for New
York to remedy the unfortunate situation sired by the O'Connell rule? The
remedy might well come in the form of an acceptance of the majority view that
written statements which are libelous only after the allegation of extrinsic
facts will be actionable per se where, if they had been spoken, they would be
slander per se. In all other cases libel per quod would be actionable only after
proof of special damage.33 Such a compromise or modified view would take
cognizance of the fact that when a libel does not appear on the face of a
publication, it is often difficult to ascertain how many people understood its
defamatory nature and, therefore, to ascertain to what degree the plaintiff
was damaged. Yet, this view also recognizes that at times the nature of the
libel is so serious that, as soon as it is established, damages may be presumed.
Whether the modification of the O'Connell decision can come through court
action or must be left to the will of the legislature, the need for clarification
of the law is apparent.
63. See note 61 supra.
64. Keeffe , Comments on the Supreme Court's Treatment of the Bill of Rights in the October 1956 Term, 26 Fordham L . Rev . 468 , 499 ( 1957 ).
1. Prosser , Torts § 93 , at 587 (2d ed. 1955 ).
3. Klein v. Sunbeam Corp., 8 Terry 526, 94 A.2d 385 (Del . 1952 ), aff'd, 95 A.2d 460 (Del . 1953 ); Hughes v . Samuels Bros., 179 Iowa 1077 , 159 N.W. 589 ( 1916 ).
4. Foley v. Hoffman , 188 Md. 273 , 52 A.2d 476 ( 1947 ); Justin v . Evening Press Co., 172 Mich. 311 , 137 N.W. 674 ( 1912 ).
S. The classes of oral defamations which are deemed to be slanderous per se are those making the imputations of crime, or a loathsome disease, and those affecting the plaintiff in his business, trade or profession. More recently, by statute or case decision, imputations of unchastity to a woman have been made slanderous per se . N. Y.R. Civ . Prac. 97 . See Prosser, op. cit. supra note 1, § 93. See also note 12 infra.
31. Id . at 799.
32. Cruikshank v. Gordone , 118 N.Y. 178 , 23 N.E. 457 ( 1890 ) (imputations tending to injure the plaintiff in his business or profession) ; Notaramuzzi v . Shevack , 108 N.Y.S.2d 172 ( Sup. Ct . 1951 ); Pearlstein v . Draizin , 190 Misc. 27 , 73 N.Y.S.2d 594 (Sup . Ct. 1947 ) (imputations of unchastity to a woman); Kraushaar v . La Vin , 181 Misc. 508 , 42 N.Y.S.2d 857 (Sup . Ct. 1943 ).
33. See note 5 supra .