Cafferty v. Southern Tier Pub. Co.

• Decision Date: 21 March 1919
• Citation: 226 N.Y. 87,123 N.E. 76
• Parties: CAFFERTY v. SOUTHERN TIER PUB. CO.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 87

123 N.E. 76

CAFFERTY

v.SOUTHERN TIER PUB. CO.

Court of Appeals of New York.

March 21, 1919.

Appeal from Supreme Court, Appellate Division, Third Department.

Action for libel by Florence Cafferty against the Southern Tier Publishing Company. Judgment for plaintiff for $1,800.81 and defendant appeals directly to the Court of Appeals. Reversed.

For opinions below, see 180 App. Div. 45,167 N. Y. Supp. 413; 181 App. Div. 913,167 N. Y. Supp. 1091; 186 App. Div. 136,173 N. Y. Supp. 774.

Chase and McLaughlin, JJ., dissenting.

Harvey D. Hinman, of Binghamton, for appellant.

T. B. Merchant, of Binghamton, for respondent.

CRANE, J.

The complaint alleges that the plaintiff is an educated and trained teacher of music and for upwards of 13 years prior to the 6th day of June, 1916, had been earning her livelihood in the profession of teaching in the public schools in the city of Binghamton, and 4 1/2 years prior to an including 1916 was engaged as supervisor of music in all the 15 schools of said city, including the high school.

On the 6th day of June, 1916, the defendant published in the Binghamton Republican-Herald, under the head line ‘Public School Teachers' List is Announced’ the following matter concerning the plaintiff:

‘Miss Florence Cafferty, supervisor of music, charged with * * * incompetence by Superintendent Kelly is another of those not appointed.’

The innuendo pleaded states that this charged the plaintiff with being ‘unqualified and unfitted to practice her said profession, that she lacked the ability, special education, training, and equipment necessary to enable her to perform the duties of a teacher with intelligence and efficiency, that by reason of such lack of ability, special education, training and equipment as a teacher of music, plaintiff was unqualified and unfitted to retain the position as teacher in the public schools of Binghamton, and for that reason was not reappointed to that position by the board of education in said city at its meeting on June 5th, 1916.’

The defendant, after pleading denials and that the article published was privileged as a fair account of the public proceedings of the board of education of the city of Binghamton, set up a justification in its third defense which reads as follows:

‘For a third and as a separate and further answer and defense said defendant alleges upon information and belief that the words set forth in the complaint and therein alleged to have been published by the defendant were and are true; that the plaintiff is a woman with a vexatious and perverse temper, and in her employment as supervisor of music in the schools of the city of Binghamton spitefully and abusively illtreated teachers who were required to work under her direction, as well as other teachers who were associated with her in the work of teaching in the schools of said city; that in her said employment she willfully antagonized the principal of the high school under whose direction she was required to work while in said high school, and willfully inconvenienced said principal and other teachers in said high school, and willfully and systematically caused and attempted to cause dissensions among the teaching force of the schools of said city of Binghamton; that the plaintiff's said acts tended to injure the schools of said city, and did injure them, and that by reason thereof, as well as by reason of her perverse temperament, she was and is incompetent to continue in her said employment, and because of such incompetence was not reappointed at the expiration of her contract with the board of education of said city of Binghamton at the close of the school year for 1915-1916.’

It has been held thus far that this defense is not a justification, and therefore insufficient, as the matter pleaded is not as broad and extensive as the libel. King v. Root, 4 Wend. 113, 21 Am. Dec. 102;Collis v. Press Publishing Co., 68 App. Div. 38,74 N. Y. Supp. 78;Saunders v. Post Standard Co., 107 App. Div. 84,94 N. Y. Supp. 993. It is said that the incompetency charged applies and is restricted to the plaintiff's learning, knowledge, and ability as a teacher of music, whereas the attempted justification only touches upon her temperamental disqualifications.

We think that the article has been misconstrued and the justification unduly limited.

[1] Miss Cafferty was charged with incompetency as supervisor of music, and not as a teacher of music. As these words were clear and unambiguous, their meaning cannot be extended by an innuendo. The office of an innuendo is to explain what has already been expressed, but not to enlarge or change the sense of the words used. Bearce v. Bass, 88 Me. 521, 34 Atl. 411,51 Am. St. Rep. 446;Goodrich v. Hooper, 97 Mass. 1, 5,93 Am. Dec. 49;Fleischmann v. Bennett, 87 N. Y. 231;McDonald v. Press Publishing Co., 174 App. Div. 463,161 N. Y. Supp. 356.

[2] It is well settled that when the publication complained of is libelous per se no innuendo is necessary, and, if the innuendo alleged is not borne out by the words, it may be treated as surplusage, and a recovery had on the words themselves. Gustin v. Evening Press, 172 Mich. 311, 315, 137 N. W. 674, Ann. Cas. 1914D, 95;Arnold v. Ingram, 151 Wis. 438, 452, 138 N. W. 111, Ann. Cas. 1914C, 976.

[3] Construed by this rule the complaint alleges that the plaintiff was charged with incompetency as supervisor of music, and that the charge meant and was intended to mean (a) that the plaintiff was unqualified and unfitted for supervisor; (b) that she lacked the ability, special education, training, and equipment necessary to enable her to perform the duties of a supervisor of music with intelligence and efficiency; (c) that ...