Art. 6. Interpretation, Construction, and Application of Language. to them by plaintiff that she was charged with having committed a crime, with having been punished therefor by imprisonment, and with having sunk low in the community. Wuest v. The Brooklyn Citizen, 38 Misc. Rep. 1, 76 N. Y. Supp. 706. INTERPRETATION, ARTICLE VI. CONSTRUCTION, AND APPLICATION OF The rule with respect to ambiguities, or words questionable as to their meaning, is laid down by Starkie, p. 45, as follows: "Both judges and juries shall understand words in that sense which the author intended to convey to the minds of the hearers, as evidenced by the whole circumstances of the case. That it is the province of the jury, where such doubts arise, to decide whether the words were used maliciously and with a view to defame, such being matter of fact to be collected from all concomitant circumstances; and for the court to determine whether such words, taken in the malicious sense imputed to them, can alone, or by the aid of the circumstances stated upon the record, form the legal basis of an action." Formerly courts construed language in mitiori sensu. This practice has been abandoned. Townshend, 179, citing numerous authorities. Words are to be construed according to their common acceptation. The doctrine of mitiori sensu has long been exploded. It is not competent to inquire of the witnesses how they understood the words. Pelton v. Ward, 3 Cai. 76; Demerast v. Haring, 6 Cow. 76; Goodrich v. Woolcott, 3 Cow. 231, 5 Cow. 714; Wright v. Paige, 36 Barb. 438; Van Vechten v. Hopkins, 5 Johns. 211; Weed v. Bibbins, 32 Barb. 315. In Turrill v. Dolloway, 17 Wend. 428, it is said, "There was a time when courts thought it a duty to understand words charged to be slanderous in the most mild and inoffensive sense, when they adopted unnatural and strained constructions of the language for the purpose of proving that it did not necessarily and with absolute certainty impute a crime. But that day has long since gone by, and the rule of common sense has become the rule on this subject. Judges and jurors now read the words in court as they would read them elsewhere; they no longer resort to those Art. 6. Interpretation, Construction, and Application of Language. constructions which make that language innocent in the halls of justice which was full of calumny when spoken or published out-of-doors. Swan's Pl. & Prac. 210-216." Maxwell on Code Pleading, 207. To determine whether a statement is defamatory it must be construed in its natural and ordinary meaning. If not defamatory in such meaning, it must be construed in the special meaning, if any, in which it was understood by the persons by and to whom it is published. Fraser, 9; Hale, 296; Woodruff v. Bradstreet Co., 116 N. Y. 219. The language of McCloskey v. Cromwell, 11 N. Y. 593, with reference to the interpretation of statutes and contracts may well be applied to the interpretation of words alleged to be libelous or slanderous. Judge Allen says (p. 601): "It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. If the words used are capable of two constructions, it is for the jury to determine in what sense they were intended. Wolcott v. Goodrich, 5 Cow. 714; Van Vechten v. Hopkins, 5 Johns. 211; Dexter v. Taber, 5 Johns. 239; Gibson v. Williams, 4 Wend. 320; Cook v. Bostwick, 12 Wend. •48; Ex parte Bailey, 2 Cow. 479. If the application or meaning of the words in an alleged libel is ambiguous or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although, at the same time, an innocent sense can be attributed to them, it is for the jury to determine, upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used. Sanderson v. Caldwell, 45 N. Y. 398. If language is ambiguous and capable of two constructions, one imputing crime and the other not, the question should be submitted to the jury to determine in what sense it was un derstood. Clapp v. Devlin, 3 J. & S. 170; Middleton v. Walter, 1 Week. Dig. 407; Brooklyn City Court, 1 Week. Dig. Art. 6. Interpretation, Construction, and Application of Language. 407, affirmed 67 N. Y. 584; McGibbon v. Young, 20 Week, Dig. 12; Vaus v. Middlebrook, 3 St. Rep. 277; Schoonhoven v. Beech, 23 Week. Dig. 348; Bannon v. Cleary, 6 St. Rep. 36; Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511; Hays v. Ball, 72 N. Y. 418, where it is said that if it had appeared that when the words were spoken they were accompanied with such an explanation as would make it clear that they referred to an innocent transaction, or to a transaction which in law could not have constituted larceny, the motion for nonsuit should have been granted; or if it had appeared that all the persons who were present understood from the facts which they knew or had otherwise learned that the words referred to a transaction which could not in law constitute larceny, the same result would follow. But that without an explanation accompanying the use of the words giving them a different meaning, or unless all the hearers understand they refer to a transaction which would not constitute a crime, the language is to be given its ordinary import and meaning. Citing Mayor of New York v. Lord, 17 Wend. 296; Sheppard v. Steel, 43 N. Y. 60, and cases supra. In Warner v. Southall, 165 N. Y. 496, affirming 31 App. Div. 375, 52 N. Y. Supp. 320, Hays v. Ball is followed, and the rule laid down that "if the words are ambiguous and capable of two constructions, one imputing larceny and the other not, it is for the jury to determine in what sense they were understood. Language should be given its ordinary meaning unless accompanied either by words of explanation or by reference to a known and particular circumstance. Van Rensselaer v. Dole, 1 Johns. Cas. 279; Bannon v. Cleary, 6 St. Rep. 36; Spencer v. Southwick, 11 Johns. 573. Where the language of an alleged libel is ambiguous and capable of being understood in an innocent and harmless, as well as an injurious sense, its true interpretation is a question for the jury. Lewis v. Chapman, 16 N. Y. 369; Vaus v. Middlebrook, 3 St. Rep. 277; Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511; Dolloway v. Turrill, 26 Wend. 383, reversing 17 Wend. 426; Dexter v. Tabor, 12 Johns. 239; Goodrich v. Wolcott, 3 Cow. 231; Rundell v. Butler, 7 Barb. 260; Sanderson v. Caldwell, 45 N. Y. 398; Ronnie v. Ryder, 28 St. Rep. 141, 8 N. Y. Supp. 5; Lally v. Emery, 59 Hun, 237, 12 N. Y. Supp. 785; Clapp v. Devlin, 3 J. & S. 170. Art. 6. Interpretation, Construction, and Application of Language. It is the settled law that where the publication is admitted and the words are unambiguous, and admit of but one sense, the question of libel or no libel is one of law which the court must decide. Snyder v. Andrews, 6 Barb. 43; Hunt v. Bennett, 19 N. Y. 173; Lewis v. Chapman, 16 N. Y. 369; Kingsbury v. Bradstreet Co., 116 N. Y. 211; Moore v. Francis, 121 N. Y. 199. Words to be libelous are to be taken in that sense in which those persons to whom the publication should come would be most likely to understand them. If the application or meaning of the words is ambiguous, or the sense in which they are used is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense might be attributed to them, it is for the jury to determine, upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used. Miller v. Donovan, 16 Mise. Rep. 453, 39 N. Y. Supp. 820. It is the duty of the court in an action for libel to understand the publication in the same manner as others would naturally do. The construction which it behooves a court of justice to put on the publication which is alleged to be libelous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer. Cooper v. Greeley, 1 Den. 347. Where a charge of crime is made against a person not named, but indicated by an intentional ambiguous description, the defendant is not entitled to have the words used favorably construed. Gibson v. Williams, 4 Wend. 320. The scope and object of the whole article is to be considered and such construction put upon its language as would naturally be given to it. It is not enough that the critic may torture the expressions into a charge of criminal or disgraceful act, nor on the other hand that a possible and far-fetched construction may find an inoffensive meaning in the language. The test is, whether to the mind of an intelligent man, the tenor of the article and the language used naturally import a criminal or disgraceful charge. Moore v. Bennett, 48 N. Y. 472. Where the publication is unambiguous and admits of but one sense, the question whether it is libelous is one of law for the court, but where the publication is capable of being construed in a harmless sense as well as in an injurious sense, an innuendo pointing out the meaning which the plaintiffs claims to be the Art. 6. Interpretation, Construction, and Application of Language. true meaning is necessary to the sufficiency of a statement of the cause of action. The plaintiff is bound by the innuendo, and if the jury negatives such innuendo or the court determines that the words used are not capable of the meaning alleged in the innuendo, judgment must be given for the defendant. Beecher v. Press Publishing Co., 60 App. Div. 536, 69 N. Y. Supp. 895. But where the complaint charges the use of words which may be or may not be harmless according to the intent and sense in which they were sued, an innuendo or allegation is necessary to the effect that they were used in a sense to render them actionable Hemmens v. Nelson, 138 N. Y. 517. The submission to the jury, in an action for libel, of the question whether the alleged libelous language does not have a meaning, of which it is capable and which is not strained or unnatural, and which, if found, is declared by the court to be actionable, is not rendered erroneous by the fact that the language is also susceptible of an innocent meaning, provided such innocent meaning is also presented to the jury to find, with the instruction that if so found the language is not actionable. Mattice v. Wilcox, 147 N. Y. 624. Words are none the less actionable because the defendant added "if reports were true." Johnson v. Brown, 57 Barb. 118. The rule is that one speaking is accountable for the import of words as they are naturally understood by the hearer. Harrison v. Thornborough, 10 Mod. 196; Gidney v. Blake, 11 Johns. 54. Explanatory circumstances known to both parties, speaker and hearer, are to be taken into account as a part of the words. Andrews v. Woodmansee, 15 Wend. 232; Miller v. Maxwell, 16 Wend. 9; Dorland v. Patterson, 23 Wend. 422. It is not necessary, however, that a charge to be actionable should be made in direct terms. It may be made in ambiguous language or by insinuation. Gibson v. Williams, 4 Wend. 320; Rundell v. Butler, 7 Barb. 260. And whether it was the intention of the defendant to charge a party with the crime imputed by the words is a question for the jury. Dorland v. Patterson, 23 Wend. 422. Words in slander suits must be given their common and popular signification. Thomas v. Smith, 75 Hun, 573, 27 N. Y. Supp. 589. |