New-York tribune., 1918-06-27
Hearst Overruled
In Demurrer to
Suit for 100000
Accused With Mrs. Humis-
ton of Conspiracy in Vio-
lating Girls Confidence

Justice Erlanger yesterday overruled
demurrer entered by the Star Pub
fishing Company, publisher of William
Randolph Hearst's New York Ameri-
can" and Evening Joernal," saying in
effect that the company had conspired
with Mrs. Grace Humiston to violate
confidence and exploit misfortune. The
demurrer was entered in an action to
recover 100000, started by Bardina
Witteveen as a result of the disclosure
Of her secret, which he was led to tell
to Mrs. Humiston by this headline in
"The Evening Journal: "Girls in
Trouble Urged to Confide in Mrs. HUI
miston-She Promises to Keep Stories
; Secret"
Miss Witteveen said she was led by
the promise" Of secrecy to contide in
Mrs. Humiston, telling her in the
course of the story that she was known
to her friends as "nena." Subsequent
ly, she said, the story appeared in "The
Evening Journal" she herself being
designated as "Dena" This, she as
serted, was "wilful, reckless and wan
ton" publication Of a privileged COM
/ munication and held her up "to public
shame, infamy and contempt"
sensational Stories
In starting her action for alleged con-
| spiracy Miss Witteveen expressed the
opinion that Mr.. Hearst's advice to
young girls to confide in Mrs. Humis-
ton was merely . meals to obtain
sensational stories" Justice Erlanger,
in dismissing the demurrer, called at
tention to the published promise that
confidence would not be abused and
said:
"The complaint contains averments
that the defendants conspired together
to bring about this breach of conf
cence, resulting in the publication.
Clearly, upon this state of facts, the
law should not be at loss to find a
cause of action against the attorney
and the newspaper proprietor whose
common enterprise was thus conducted.
AS to the attorney, if this complaint
is true, the right of action is plain.
The Star company. to support it's de-
murrer, points to the allegation that
matter published was true. So, it
argues, there was no libel, and there
being consr tracy indicated other than
, to libel, the conspiracy could not be
said to have been carried out, in the
absence Of an untrue publication.
Granting that the truth of the matter
published is shown by the complaint,
and that the allegations which suggest
untruth-through resort TO certain in
ruendoes-are not supported by q rea-
sonable meaning of the words of the
article, the pleading is still sufficient
iE my opinion.
Malice Presumed
"The action is not for libel. 1t is
for conspiracy, and may be supported
by facts showing combination by two
or more persons to do an unlawful act,
which has been accomplished with dam
age to the person whose rights were in
vaded. Here the unlawful act, as con-
ceived by the defendants and accom-
plished, was the publication of defama-
tory matter concerning the plaintiff.
The purpose of the publication was not
to be dclicattly taken as confined to a
publication which might or might not
be the subject of civil suit for libel
The truth Of the publication would be
sufficient defence to an action of that
class, but the unlawful character of the
act still remains unless the defamatory
matter not only was true but was
published with good motives and justi-
fable ends (Penal law, Sections $40,
1,342).
at is upon this ground that the
complaint states case, since the sub
ject of the conspiracy-the intended
and accomplished dcfamng of the
plaintiff for the defendants profit in
business within the inhibition Of
the penal law.
"Truth in the publication made the
offence no less, for upon the facts
alleged and admitted by the demurrer
the motives were bad. the ends un-
justifiable and malice, so far as neces-
sary, was presumed"
4 Justice Erlanger gave the Star Pub
nshing Company permission to file an
enswer to the complaint of Miss Witte.
zen within twenty days upon payment
Of costs.