Cheatum v. Wehle

• Citation: 5 N.Y.2d 585,159 N.E.2d 166,186 N.Y.S.2d 606
• Parties: , 159 N.E.2d 166 E. Leonard CHEATUM, Respondent, v. Louis A. WEHLE, Appellant.
• Decision Date: 17 April 1959
• Court: New York Court of Appeals

Page 606

186 N.Y.S.2d 606

5 N.Y.2d 585, 159 N.E.2d 166

E. Leonard CHEATUM, Respondent, v. Louis A. WEHLE, Appellant.

Court of Appeals of New York.

April 17, 1959.

George R. Fearon and Vincent A. O'Neil, Syracuse, for appellant.

John W. Tabner, Joseph Rosch and Nathan M. Medwin, Albany, for respondent.

DYE, Judge.

This is an action for slander. The parties are well-known public figures. The plaintiff, Dr. E. Leonard Cheatum, is a nationally recognized authority on wild life and conservation. He has made it his life career, serving in course of time as a teacher, writer and organizer, and had held public positions in that filed in the conservation departments of the United States in several States of the Union and at the time in question was and for some time prior thereto had been a civil service employee in the New York State Conservation Department.

The defendant, Louis A. Wehle, a successful business man, has interested himself in wild life conservation. It has been for him an absorbing hobby, leading to the operation of a licensed game farm in connection with his extensive land holdings and the sponsorship of the widely advertised and popular 'Louis A. Wehle Fishing Contest' and 'Louis A. Wehle Conservation Contest', which carry with them substantial cash prizes for winners in various and assorted categories of fishing and hunting. In this connection, he also published and widely distributed complimentary copies of a booklet known as the 'New York State Fishing Guide', its authorship being credited to him as chairman of the board of the Genesee Brewing Company.

On January 1, 1955 Governor Harriman appointed Mr. Wehle to his official family as the State Conservation Commissioner. He qualified and assumed the duties of that office. At that time, Dr. Cheatum was Chief of the Bureau of Game, Division of Fish and Game, in the State Conservation Department and, as such, was directly under the supervision of and responsible to the commissioner.

On or about May 31, 1956 Commissioner Wehle was the guest of honor at a dinner held at the Hotel Woodruff, Watertown, New York, which was attended by over 150 persons, including a number of local sportsmen, civic and business leaders, members of the press and sports writers. Commissioner Wehle made a speech on the general subject: 'What's Wrong With The Conservation Department', in the course of which he allegedly said in part:

'At Albany I found a secret society or fraternity among the employees. They stood around in groups in the corridors, whispering among themselves and looking at me out of the corners of their eyes. They were out to oppose anything I favored.

'My Grenadier Island project for toughening pheasants under semiwild conditions was torpedoed by that bunch.

'Twenty thousand birds were put on the island. All but five thousand died of botulism, a food poisoning. The reason they died was because the head of my game bureau, E. L. Cheatum, sent some five thousand birds there from the Delmar Game Farm. These birds were half dead from botulism when they were shipped. It was like taking kids with measles and putting them in a room with healthy kids. The rest contracted the disease as anyone might expect they would.

'Cheatum was advised against sending these birds but he paid no heed. It was either deliberate sabotage or gross neglect on his part. It sunk the experiment. The State could well do without the services of such employees. What the Department needs is a good overhauling and that is what I plan to do right away starting with Cheatum.'

The plaintiff alleges in his complaint that the quoted words were uttered willfully, falsely and maliciously, with the intent to injure him and his good name and reputation and to destroy his usefulness in the field of conservation and demands damages in the sum of $200,000.

By his answer, the defendant-appellant denied generally all of the material allegations of the complaint and interposed a series of defenses which fall generally in the category of 'fair comment', 'immunity from suit based on official privilege' and by way of explanation and clarification of the language used as intending to mean something different from that attributed to it by the plaintiff.

Following joinder of issue, the plaintiff moved to strike the five separate defenses contained in the defendant's answer on the ground of legal insufficiency. The defendant cross-moved to dismiss the complaint for failure to state a cause of action (Rules of Civil Practice, rule 109). The Special Term granted plaintiff's motion in part and denied defendant's cross motion in its entirety.

On cross appeals to the Appellate Division, Third Department, that court unanimously modified, on the law, the order of Special Term by striking out the first defense (designated 'II') as a complete defense and permitted it to remain as a partial defense only and by striking out the third affirmative defense (designated 'IV') and, as so modified, otherwise affirmed. Thereafter, the Appellate Division denied the defendant-appellant's motion for reargument and granted his motion for leave to appeal to this court on four certified questions. We are satisfied that the complaint states a cause of action.

The defendant-appellant, by his first defense (designated 'II'), contends that the complained of statements which related in any way to the plaintiff, were made without malice and in good faith; that the Grenadier Island project was a matter of grave public interest and concern to the taxpayers and inhabitants of the State and that it was not only his right but his duty as Commissioner of the Department of Conservation to report upon and discuss the policies, personnel, projects and general operation of the department so that the public might be kept fully informed and advised regarding its conduct and administration; in other words, that the utterance, although derogatory and defamatory in nature, in light of the background and circumstances of its making, was a fully justified expression of opinion and fair comment.

While the activities of a person holding public office may properly be criticized, whenever such criticism is of a derogatory or defamatory nature, the defense of fair comment is not available to one who makes false and untrue statements or unjustifiable inferences (Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840). Such protection, as we have said, 'extends to a fair and honest statement of actual facts relating to public acts and to reasonable and justifiable comment thereon and criticism thereof. It does not extend to attacks upon private character or to publishing defamatory things about an offical even if the writer in good faith makes the publication believing his statements are true, neither does it permit a person to draw conclusions that are, or that the jury may find are, improper and unjustifiable.' Bingham v. Gaynor, 203 N.Y. 27, 33, 96 N.E. 84, 85.

Here it is not claimed that the opinion expressed and it may be deemed an opinion because of its derogatory nature is based on truth. In fact, a careful reading of the pleadings indicates that the defendant-appellant denied he uttered the complained of statement and at the same time he failed to allege what in fact he did say or that what in fact he said was true or that his comments were based on facts believed to be true. His defense depends on a conclusory allegation based on his own estimate of the situation and may not serve as a substitute for facts (Julian v. American Business Consultants, 2 N.Y.2d 1, 155 N.Y.S.2d 1). The defendant charged the plaintiff with 'either deliberate sabotage or gross neglect', but nowhere does he plead the truth of the statement or that it is based on facts believed to be true. To that extent at least the privilege attending fair comment is insufficient to constitute a complete defense. However that may be, the first alleged complete defense (designated 'I') should not be stricken in its entirety, but should be allowed to stand so as to permit the defendant to prove 'mitigating circumstances, including the sources of his information and the grounds for his belief, notwithstanding that he has pleaded or attempted to prove a justification'. Civil Practice Act, § 338; Crane v. New York World Telegram Corp., 308 N.Y. 470, 126 N.E.2d 753, 52 A.L.R.2d 1169.

Under Federal decisions, it has long been held that an executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting (3 Restatement, Torts, § 591). The policy underlying such official privilege was succinctly enunciated by Harlan, J., viz.: 'In exercising the function of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.' Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780. The privilege protects a judicial officer in respect to acts done in the course of his judicial duties (Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646) and has been applied to alleged libelous publications by a department head (Spalding v. Vilas, supra) and reiterated in Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328, certiorari denied 311 U.S. 718, 61 S.Ct. 441, 85 L.Ed. 468, Joint Anti-Fascist Refugee Committee v. Clark, 88 U.S.App.D.C. 255, 177 F.2d 79, reversed 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. The doctrine of immunity based on official privilege is recognized in this State, being based upon 'considerations of public policy, and to...