130 Misc. 207 | N.Y. Sup. Ct. | 1927
This is an action for libel. The pleadings disclose that plaintiff and defendant are interested in the subject of game conservation in the United States. As to what degree of conservation is desirable, what methods should be employed — in particular what limits should be imposed by Federal regulation upon game bags and the length of the open seasons — they differ radically.
By the Migratory Bird Treaty Act of July 3,1918 (40 U. S. Stat. at Large, chap. 128), the Department • of Agriculture was given authority to enforce the provisions of the Migratory Bird Treaty relating to the protection of birds migrating between Canada and the United States. In accordance with the provisions of this act an advisory board of twenty-one members was appointed by the Secretary of Agriculture. To this board, together with the Chief of the Biological Survey, is intrusted the formulation of rules and regulations concerning the hunting, shooting and capturing of migratory birds and these regulations when accepted by the Secretary of Agriculture and approved by the President of the United States, have the force of law under this act.
Plaintiff is and has been, from the time of its formation, the chairman of this advisory board, and defendant, until 1926, was a member of it.
Plaintiff is also the president of the American Game Protective and Propagation Association, a membership corporation organized under the New York law.
In 1923 at a meeting of the advisory board defendant introduced a proposed resolution that the board recommend to the Secretary of Agriculture a fifty per cent reduction of game bag limits and open seasons on certain migratory game birds. Plaintiff opposed this measure. The board did not adopt the resolution and defendant, up to the time of the publication complained of, had not succeeded in getting these changes introduced into the Federal Game Regulations.
“ I (meaning defendant) am discouraged, gloomy and pessimistic because the birds are on the ragged edge of oblivion. I am trying to adjust my mind to a result that seems quite inevitable. The bird-defenders hold few good cards and all the high trumps seem to be held by the bird, destroyers. For years I have noted the awful annual increase in bird slaughter and for years I have dreaded the arrival of the day when the small circle of men who control game protection matters in Washington would decide that no more reductions should be made in the killing privileges of sportsmen and game hogs.
“ That day has arrived. First, the gunmakers’ American Game Protection Association and then the United States Department of Agriculture very firmly decided that the Federal bag limits on migratory game birds should not be reduced by the annual Federal regulation. John B. Burnham, President of the gunmakers’ association, opened the attack on the reform measure. He officially is the chief adviser of the Department of Agriculture on the migratory bird laws.
“ The Federal Government is. in close agreement with the paid agents of the big corporations who make and sell guns and ammunition. * * * It is reported that John B. Burnham’s influence in the Biological Survey is paramount, and the records point that way.
“ The split between the gun crowd and the field has come about over the killing privileges of the six or seven million sportsmen who annually hunt game in the United States. The gun sellers and the Government flatly refuse to agree to make the substantial reductions in hunting privileges that have been widely demanded in the interest of the preservation of game and sport on a permanent basis. In winter the ducks and geese mass up in nine States, and the sportsmen and duck hunters who shoot in those States refuse to budge an inch from twenty-five ducks and eight geese per day. Thus far they seem to completely control the Department of Agriculture.
“ Income from Gun Makers
“ What is the source of the income of that American Game Protective Association?
“ Its source is the annual profits of the Remington Anns Company, the Winchester and Savage Arms Companies and we know
“ I regard Mr. Burnham’s influence over Dr. E. W. Nelson and other high officers of the Biological Survey on game-shooting privileges as completely paramount. I believe that that association’s influence is to blame for. the fact that now the Biological Survey and the Secretary of Agriculture have flatly refused all appeals to reduce the bag limits and open seasons on migratory game, and have passed the buck to the States to do as they please about it. Ever since 1918 the Secretary of Agriculture has held idle in his hands the power specially placed there by Congress to reduce the nation’s bag limits and open seasons on migratory game, to offset the awful annual increase in hunters, guns and killing. The only bag-limit change any Secretary has made during the last eight years (1918 to 1925) has been to raise the bag limit on the poor little sora rail from 25 per day to 50 per day! Can you beat that record for sheer evasion of duty and lost opportunities? ”
The complaint also alleges an innuendo in which plaintiff attributes to the words used the fixed and definite meaning which he thinks they ought to bear.
The answer, consisting of forty-two typewritten pages, after admitting the composition and publication of the article, pleads four affirmative defenses. The first ten paragraphs rehearse all the services that defendant has rendered without remuneration to the cause of conservation in the United States. In paragraphs 11-65 inclusive defendant sets up as a complete defense, qualified privilege; fair comment on a public question and justifiable reply to attacks made by plaintiff on defendant. The matters alleged in paragraphs 22-64 of the first defense are realleged in the second ■ defense as complete justification. The allegations of the second defense are realleged as partial defenses in mitigation of damages in the third and fourth defenses. There are also included in these defenses allegations to the effect that defendant, by reason of certain facts, was induced to believe the truth of the charge, together with statements of events occurring subsequently to the publication.
The plaintiff has moved to strike out the defenses of qualified
The defendant asserts that the complaint fails to state a cause of action and he asks for its dismissal. Plaintiff’s motion to strike out affirmative defenses searches the record and necessarily involves the sufficiency of the complaint. (Baxter v. McDonnell, 154 N. Y. 432; 155 id. 83; Title Guarantee & Trust Co. v. City of New York, 205 id. 496; Manson v. Curtis, 223 id. 313.) The same rule is applicable where insufficiency of affirmative defenses is tested by motion rather than under the old practice by demurrer. (Small v. Sullivan, 245 N. Y. 343.)
The defendant’s criticism of the complaint is that the allegations of falsity are indefinite and insufficient; that the article is not libelous per se*and that the pleading contains no averment of special damage. The complaint in the tenth paragraph alleges that “ defendant maliciously composed, gave and furnished to certain newspapers ” the statement in question and that it “ contained the following false and defamatory matter of and concerning this plaintiff.” This language is followed by the publication. It is difficult to understand' how the language could be more specific. The case of Rein v. Sun Printing & Publishing Association (196 App. Div. 873) upon which the defendant relies is distinguishable. Unlike the case at bar, in the Rein case the publication complained of was introduced without any allegation of falsity. That the absence of such an allegation was the basis for holding the complaint defective is evident from the following extract from the opinion of Mr. Justice Dowling: “ I believe that where there is no allegation that the whole article is false and untrue, but specific portions are picked out as being false, the denial of the truth of such specified statements should be plain and explicit.”
| The complaint contains only general allegations of damage and consequently it must be determined whether or not the publication is libelous per se. In the absence of a proper allegation of special damages, as in this case, the article complained of must be libelous per se in order to be the basis of a cause of action. When the words are not prima facie actionable the complaint must not only contain an averment of special damages but it must set forth precisely in what way such damages resulted from the publication. ) (O’Connell v. Press Publishing Co., 214 N. Y. 352; Reporters Association v. Sun Printing & Publishing Association, 186 id. 437; Crashley v. Press Publishing Company, 179 id. 27.) When the article is not libelous on its face but becomes so only by reference to extrinsic facts, such facts must be alleged in a traversable form.
Defendant argues that even if the words complained of are, in their natural meaning, libelous, plaintiff is bound by the innuendo alleged and may not recover on any other theory. In this, it seems to me, he is mistaken. The plaintiff cannot, during the progress of the cause, discard the innuendo in his pleading and start a fresh one not on the record. He must abide by the construction which he has put upon the words in his complaint. The plaintiff is not confined to the innuendo in his pleading. He may always fall fack on the natural and obvious meaning of the words. An innuendo may be treated as surplusage when it is used in connection with words that are unequivocal and actionable per se (Newell Sland. & Lib. [4th ed.] 590; Carter v. Andrews, 16 Pick. [Mass.] 1; 37 C. J. 25; Cafferty v. Southern Tier Publishing Co., 226 N. Y. 87; Morrison v. Smith, supra; Smith v. Buffalo Times, Inc., 124 Misc. 495; affd. 214 App. Div. 759; McKee v. Robert, 197 id. 842; Hart v. Woodbury Dermatological Inst., 113 id. 281.)
[A publication which imputes political corruption, or the use of political influence or privileges for pecuniary gain, is libelous per se, even though the party against whom the charge is made is not a public officer or a candidate for office. (36 C. J. 1172.) It is libelous to impute to anyone holding an office that he has been guilty of improper conduct in that office or has been actuated by wicked, corrupt or selfish motives, or is incompetent for the post which he holds. ((Odgers Lib. & Sland. [5th ed.] 25.) Words which impute a want of integrity to anyone holding an office of confidence or trust, whether an office of profit or not, are clearly
Under section 39 of the Federal Criminal Code (U. S. Code, tit. 18, Crim. Code and Crim. Pro. § 91; R. S. § 5451; 35 U. S. Stat. at Large, 1096), which makes it an offense to give or offer a bribe to such officers or persons, it has likewise been held that an unpaid official — a member of a local draft board — is an “ officer of the United States ” or “ a person acting for or on behalf of the United States in an official function ” within the meaning of that section. (U. S. v. Dordonaro, 253 Fed. 477.)
When the article composed and published by the defendant is read in the light of the foregoing principles of law it seems to me that it is libelous per se. Certainly the language is calculated to injure plaintiff’s reputation and to degrade him in public estimation. Because the publication complained of does not state an indictable offense under section 113 of the Federal Criminal Code, defendant’s counsel argue that it is not libelous per se. We do not have to consider whether the conduct attributed to plaintiff does or does not constitute a crime. It is enough that the article clearly implies that plaintiff has acted hypocritically and corruptly in a position of public trust. (Bennett v. Commercial Advertiser Assn., 230 N. Y. 125; Powers v. Dubois, 17 Wend. 63; Weed v. Foster, 11 Barb. 203; Hoey v. New York Times Co., 138 App. Div.
Therefore, this complaint states a good cause of action.
In his first affirmative defense the defendant has combined the plea of fair and justifiable comment on a matter of public interest with a plea of qualified privilege. This he cannot do. Each defense should be separately stated and numbered. (Rules Civ. Prac. rule 90; Civ. Prac. Act, § 261; Stern v. Marcuse, 119 App. Div. 478; Morron v. Bryce, 162 id. 466; International Railway Co. v. Jaggard, 204 id. 67.) The defenses of fair comment and privilege are not identical. In the latter case the words may be defamatory but the defamation is excused or justified by reason of the occasion; while in the former case, the words are not defamation of the plaintiff, and hence not libelous — the stricture or criticism is not upon the person himself, but upon his work. (Newell Sland. & Lib. [4th ed.] 519.) A further distinction is pointed out in the following quotation from the opinion in Merivale v. Carson (20 Q. B. Div. 275): “ A privileged occcasion is one on which the privileged person is entitled to do something which no one who is not within the privilege is entitled to do on that occasion. A person in such a position may say or write about another person things which no other person in the kingdom can be allowed to say or write. But in the case of a criticism upon a published work, every person in the kingdom is entitled to do, and is forbidden to do, exactly the same things, and, therefore, the occasion is not privileged.”
The public acts of public men, especially in the absence of express malice, are the subject of fair comment and criticism by people generally. It is the right of every one, not the privilege of any one, to comment fairly and honestly on matters of public importance. The right to comment or criticise does not embrace the right to make false, defamatory statements importing a criminal offense or
The justification must be as broad as the charge and must justify the precise charge. (Bingham v. Gaynor, supra; Odgers Lib. & Sland. [5th ed.] 181.) The libelous implications and insinuations as well as the direct accusations must be justified. (Morgan v. Rep. Pub. Co., 249 Mass. 388; Odgers Lib. & Sland [5th ed.] 638.) The defendant’s attempted justification falls short of meeting these requirements. This defense is clearly insufficient because of its failure to substantiate the imputations of hypocrisy and corruption which the article complained of conveys — its failure to justify the real sting of the libel. (Abell v. Cornwall Industrial Corp., 241 N. Y. 327; Roberts v. Brown, 10 Bing. 519.)
All the facts set up in the defense of justification are realleged in mitigation of damages as the third defense. These matters are irrelevant and should be stricken out. Nowhere is it alleged in this defense that these matters were known to the defendant when he published the statement. Unless such knowledge is alleged (Dolevin v. Wilder, 34 How. Pr. 488) and proved (Carpenter v. New York Evening Journal Publishing Co., 96 App. Div. 376) evidence of these facts cannot be received in mitigation. The matter set forth in this defense cannot be proved as tending to show the truth of the charge of official dishonesty. (Mattice v. Wilcox, 147 N. Y. 624; Hamilton v. Eno, supra.) The repetition in the final defense of the facts which appear in each of the preceding defenses is redundant and prejudicial. (Pullen v. Seaboard Trading Co., 165 App. Div. 117.) All the allegations in this defense which tend to show a disclaimer of an intention to defame the plaintiff are immaterial. In actions for defamation it is immaterial what meaning the speaker intended to convey. He may have
In a libel action where the real issues relate to matters of personal integrity, the retention in the pleadings of evidentiary, redundant and irrelevant allegations which open wide the door to a discussion of the merits of a highly controversial subject, it seems to me, would necessarily prejudice a fair trial of the cause and distract the attention of the jury. Furthermore, the harm which such improper allegations may do' is largely accomplished when they have been referred to and commented upon in the opening. Although the evidence in support thereof may be rejected and the jury properly cautioned, nevertheless, the impression remains and is likely to be reflected in the final result. In libel actions it is the duty of the court to strike from the pleadings prejudicial matter. (Sherman v. International Publications, Inc., supra; Schieffelin v. Hylan, 178 N. Y. Supp. 652; affd., 190 App. Div. 903; Wuensch v. Morning Journal Association, 4 id. 110.)
The first and second defenses are, therefore, stricken out as insufficient in law and defendant is directed to serve an amended answer omitting from the remaining defenses the repetitious, irrelevant and prejudicial matter referred to in the notice of motion, with costs to plaintiff.
