95 N.Y.S. 151 | N.Y. App. Div. | 1905
As the learned trial justice said in charging the jury, “There are here two cases which .are entirely separate, one against Mr. Maxwell and one against Mr. Best.” They were tried as one, and will be so considered on the appeal, the point not having been raised that a joint action only lies where joint liability exists.
The plaintiff is. a teacher in one of the public schools of the borough of Brooklyn. The defendant Best is. her principal and the defendant Maxwell is the city school superintendent. In the complaint it is charged that the defendant Best on October 5,1900, libeled the plaintiff by stating in an official report that she was “careless” in blackboard work,, and that the defendant Maxwell on March 30, 1901, libeled her by writing a letter in which he stated in reference to such report that he “ never had any doubt that Mr. Best’s estimate (of the plaintiff) is pretty nearly correct.”
The court charged the jury in substance that the report made by the defendant Best was privileged, and that in order to recover damages from him the plaintiff must establish that in it • he had depreciated her below his true conception of her merit, and that he had- done so with the intent of injuring her chances for prefer- . inent. The verdict of the jury exonerated Mr. Best and justifies his report as an honest and unprejudiced estimate of the plaintiff as a teacher at the.time it was made. I do not see how any other conclusion could have been reached. The report records the plaintiff’s school work as good in many particulars; no fault seems to have been found with it by the plaintiff, excepting as to the allegation charging carelessness in the blackboard work; and the evidence no where suggests actual malice in its preparation or publication. The report indeed is but the common, ordinary affair of modern school life. Its good faith has not been successfully impugned; its bears no obvious imprint of malice; it is not unkind in tone; it is not unjust in substance; it was not inspired by ill-will; it has wrought no financial harm. But the same jury which has thus relieved Mr. Best from all suspicion of blame in the making of the report has found against Mr. Maxwell for his expression of confidence in its correctness ; a curio us. result which possibly may have been due to some extent at least to .the difference in the rules of law applied by the court to the two defendants. The court charged the jury that Maxwell’s letter was not privileged,- but that on the contrary “ it was a purely unnecessary, gratuitous and uncalled for letter.” He charged that as to Best’s report the burden was on the plaintiff to prove her cause of action, while as to Maxwell’s letter the burden ' was on him to justify it. Throughout the tidal he ruled that there was no evidence in the case from which an inference of actual malice on the part of Maxwell could be deduced. And at the very end of the case when Maxwell was testifying he said, “ there isn’t
I think that both writings were privileged; that neither was libelous per se, and that in the absence of any claim of special injury,the complaint 'should have been dismissed as to both defendants. It was-clearly the duty of the defendant Best, as principal of the school in which the plaintiff teaches, to note and to record her work and his opinion of her capacity and skill, and no offense attaches to an unfavorable expression which is believed to be truthful and honest. Moreover, the charge of carelessness is not libelous as might be,a charge of unskillfulness or general incapacity. History furnishes many instances of genius wasted by a life of carelessness and indifference. The plaintiff is not necessarily injured in her profession by a charge of carelessness in the performance of á particular branch of her work. The case of Mattice v. Wilcox (147
The learned counsel for the plaintiff conceded on the argument that the report was not libelous per se, but claimed that the letter of the defendant Maxwell was so. The claim is inconsistent with the concession. It cannot be that a written expression of confidence in the accuracy of a report is libelous if the report itself is not so. The report was made to Maxwell as being in a Sense the official head ' of the city schools. The letter was written by Maxwell in response to one which had been sent to him in the plaintiff’s interest, and, at her request, by Edward G-. Ward, the borough superintendent of schools, calling attention to an alleged conflict between the opinion, expressed in the report in question and one made shortly before by the same principal. Shortly afterwards Ward wrote to Maxwell, - withdrawing the complaint, and saying in that letter, in reference
The rule of privilege is reasonably well settled. Each of the parties to the correspondence in question had an official interest in the accuracy of Mr. Best’s report. In Lewis & Herrick v. Chapmam, (16 N. Y. 369, 373) Judge Selden said : ‘r Where both parties, %. e., the party making as well as the party receiving, have an interest in the communication, it has never been doubted that it was privileged.” The rule has been frequently reiterated in the Court of Appeals. (See Van Wyck v. Aspinwall, 17 N. Y. 190; Klinck v. Colby, 46 id. 427; Byam v. Collins, 111 id. 143.) And in Decker v. Gaylord (35 Hun, 584) it was held that oral communications made in good faith and in a proper manner to a school commissioner by a resident of the district charging a teacher with obscenity and unchastity are privileged ; that the presumption is that the person making such a communication is acting in good faith, and the burden of proving
The judgment in so far as appealed from by the plaintiff and the order denying her motion for a new trial should be affirmed, with costs to the defendant Best, and the judgment in so far as appealed from by the defendant Maxwell and the order denying' his motion for a new trial should be reversed and a new trial granted, costs to abide the event.
Babtlett, Woodward, Rich and Miller, JJ., concurred.
Judgment in so far as appealed from by the plaintiff and the order denying her motion for a new trial affirmed, with costs to the defendant Best, and judgment in so far as appealed' from by the defendant Maxwell and the order denying. his motion for a new trial reversed and new trial granted, costs to abide the. event. ,