173 Misc. 634 | N.Y. Sup. Ct. | 1940
The defendant’s motion to dismiss the action upon the pleadings depends upon whether a newspaper article appearing in a column entitled “ The Washington Merry-Go-Round ” is libelous per se. It states:
GHOST REPORTS.
“ Members of the TVA investigating committee are secretly probing an inside tip that the two minority reports panning the management of the great power project are the work of a pair of utility ghost writers.
“ They are Paul 0. Peters, reported to have written the official blast signed by Senator James Davis of Pennsylvania and Rep. Charles A. Wolverton of New Jersey, and Col. James E. Cassidy j credited with authorship of the hostile report turned in by Rep. Tom Jenkins of Ohio.
“ Throughout the extended inquiry, Wolverton and Jenkins displayed open bias against TVA, frequently clashing with other committee members. Both Peters and Cassidy are known to have spent considerable time in the offices of Wolverton and Jenkins when the minority reports were being written.
“ Peters, who worked for the Republican Congressional Committee during the 1938 campaign, has a long record of anti-TV A activity. He wrote a book and numerous articles assailing TVA, has previously supplied congressional critics with material for hostile speeches. Capitol Hill friends credit him with the boast that he had the keys to six senatorial and congressional offices.
“ Cassidy is a World War army engineer who once tried to get a job with TVA but was turned down by Dr. Arthur Morgan, ousted chairman, because ‘ * * * we did not know who his real employer was,’ Morgan gave this explanation to a House committee during an investigation of a leak on a secret General Accounting' Office report on the TVA.
“ Acting as the representative of Congressman Andrew May, Kentucky member of the committee, Cassidy had obtained a copy of the report and used a mimeograph machine in the office of the Commonwealth & Southern Power Co., a bitter TVA foe, to print a press release of denunciatory extracts.
“ Cassidy hotly denied that he had received utility pay for the job, but as a result an amendment was passed by Congress requiring the Accounting Office to submit all TVA audits to the TVA before making them public.”
The most serious effect of this article lies in the use which is made of the remark attributed to Chairman Arthur Morgan of the Tennessee Valley Authority that plaintiff once tried to get a job with that organization but was turned down because “ we did not know who his real employer was.” Read in connection with the statement that plaintiff is a utility engineer, and the reference to his relations with the Commonwealth & Southern Power Company, characterized as a bitter TVA foe, the repetition of Dr. Morgan’s remark may reasonably be construed to mean: (1) Cassidy applied for employment as engineer with the TVA and was rejected; (2) the reason for his rejection was the fact that he owed primary allegiance to a private utility company which was, and would continue to be, his real employer, and whose interests were hostile to TVA; (3) this double allegiance rendered him unfit for public service in TVA; (4) he would not have sought employment in TVA unless his purpose had been to use it to promote the interests of his real employer, which would have been contrary to good public morals and at the expense of the United States; (5) notwithstanding that his private utility connection was sufficient to disqualify him, Cassidy kept it secret, as is shown by the fact that the TVA directors would have known otherwise who his real employer was. The implication is substantial that Cassidy did not lay his cards upon the
The immediate subject of the article is the criticism of TYA contained in the two minority reports submitted by members of the congressional investigating committee. These reports are interpreted by attacking the motives of the persons declared to have written them and by representing as dupes the Congressmen who signed them. Only the report ascribed to Cassidy’s authorship is here involved. The reason for introducing Cassidy’s previous record into the newspaper article is evidently to explain his relations with Congressman Tom Jenkins of Ohio, whose report he is said to have written. The incident referred to in Dr. Morgan’s remark, which has been analyzed above, is presented as part of Cassidy’s previous record. It is important to examine what the article says about the occasion for Morgan’s remark and about his object in making it. Before Congressman Jenkins’ report was written there appears to have been some inter-office communication within the executive branch of the government, described as a “ secret General Accounting Office report on the TVA,” which unexpectedly became public. Inasmuch as it was supposed to have been confidential and its release to the press was unexplained, this “ leak ” became the subject of investigation by a committee in Congress. Cassidy, it is written, proved to have been responsible. Dr. Morgan is reported to have given information to that committee which is where he is said to have made the statement that has been quoted about Cassidy. The article puts forth that Cassidy’s attempt to obtain employment with TYA and his rejection for the reason mentioned by Morgan explains his motives and behavior in bringing about the leak, which could scarcely have been the case unless the leak resulted from underground activity by Cassidy to further the designs that had impelled him to seek employment in the TYA. It is stated that he obtained a copy of the General Accounting Office report by acting “ as the representative of Congressman Andrew May, Kentucky member of the committee.” The implication is that he obtained the report by the same devious methods that he had practiced unsuccessfully on Chairman Morgan when his career with the TYA was intercepted. It may be gathered that all this was past history and was resurrected by the news commentator to use in presenting a similar explanation of Cassidy’s conduct in prevailing upon Congressman Jenkins of Ohio to permit him to write his minority report. It is insinuated broadly that Cassidy again concealed who his real
Whether this construction shall be placed upon the article is a question for a jury (Hoeppner v. Dunkirk Printing Co., 254 N. Y. 95, 105; First National Bank v. Winters, 225 id. 47, 50; Morrison v. Smith, 177 id. 366, 369; Moore v. Francis, 121 id. 199, 202, 203), which may find the innuendoes embodying it that are alleged in the complaint to have been sustained. There is a basis in the article for such a construction. The casual reader might not stop to analyze, but could easily conclude that plaintiff is a crook and let it go at that.
If this was fair comment upon facts truly stated on matters of public interest and concern, that is at most a defense (Foley v. Press Pub. Co., 226 App. Div. 535) and not to be regarded upon a motion to dismiss a complaint which charges that the facts are stated falsely and with malice. (Hoeppner v. Dunkirk Printing Co., 254 N. Y. 95, 105.) Privilege is also a defense unless the complaint establishes on its face that the privilege is absolute. (Tierney v. Ruppert, 150 App. Div. 863, 866, 867; Chapman v. Dick, 197 id. 551, 554; Corwin v. Berkwitz, 190 id. 952.) Here the article says that Dr. Morgan’s statement was addressed to a congressional committee, but the complaint contains no averment to that effect, nor is it alleged that the quotation attributed to him is a correct report of what he said. Pleading the offending article does not establish its truth where the complaint alleges it to be false. (Milliken v. Western Union Tel. Co., 110 N. Y. 403; Hatch v. Mathews, 83 Hun, 349.) Furthermore, a privilege surrounding the original utterance of Morgan’s words would not protect against an extension of them to characterize acts by Cassidy upon other occasions in his relations with other persons. If the defendant has tarred him again with the same brush that Morgan used, Morgan’s privilege
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 by the reading public acquainted with the parties and the subject-matter. (Sydney v. MacFadden Newspaper Pub. Co., 242 N. Y. 208, 214; Turrill v. Dolloway, 17 Wend. 426; revd. on other grounds, Dolloway v. Turrill, 26 id. 383.) It is immaterial that the article refers to the defamatory matter as being rumored, subject to investigation, or the like. (Skinner v. Powers, 1 Wend. 451.) “ The publisher of a libel cannot escape liability by veiling a calumny under artful or ambiguous phrases, or by indirectly charging that which would be slanderous, if imputed, in direct and undisguised language.” (Sanderson v. Caldwell, 45 N. Y. 398, 401.) “ Judges and jurors now read the words in court, as they would read them elsewhere; they no longer resort to those constructions which make that language innocent in the halls of justice, which was full of calumny when spoken or published out of door.” (Turrill v. Dolloway, supra.)
The motion to dismiss the complaint is denied.
The defense of justification as pleaded in the answer is assailed by plaintiff upon his counter-motion for judgment on the pleadings upon the ground that it is narrower than the charges made in the article. (Adell v. Cornwall Ind. Corp., 241 N. Y. 327.) The admission by the defendant of the incorrectness of the statement that the plaintiff used a mimeograph machine in the office of the Commonwealth & Southern Power Company is not enough to vitiate the defense since it does not affect the substance of the defamatory charges. (Cafferty v Southern Tier Pub. Co., 226 N. Y. 87; Fleckenstein v. Friedman, 266 id. 19.) A more serious question arises from the failure of the answer specifically to state that Cassidy was in the employment of a private utility corporation, for which he sought to gain advantage while concealing that fact from the TVA directors and from Congressmen Jenkins and May. These are the damaging insinuations which may be drawn from the article. The answer is sufficient without the defense of justification, however, inasmuch as the libelous innuendoes are denied. The jury may place an innocent construction upon the article, in which event no justification is necessary. (Foley v. Press Pub. Co., 228 App. Div. 535; McDonald v. Press Pub. Co., 174 id. 463; Hollingsworth v. Spectator Co. [No. 1], 53 id. 291.) The plaintiff is not entitled to judgment upon the pleadings, even apart from the necessity of assessing the damages.
Settle orders upon notice.