Fleckenstein v. Friedman
| Decision Date | 27 November 1934 |
| Citation | 266 N.Y. 19,193 N.E. 537 |
| Parties | FLECKENSTEIN v. FRIEDMAN et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by William P. Fleckenstein against Benny Friedman and another. From an order of the Appellate Division (241 App. Div. 212, 271 N. Y. S. 624) reversing an order of Special Term on plaintiff's motion to strike out separate defenses contained in defendants' answer, plaintiff appeals, by permission of the Appellate Division, with certified questions.
Questions answered, and order modified and affirmed.
The following questions were certified:
‘Is the separate defense set out in paragraphs Fifth, Sixth, Seventh and Eighth of the defendants' answer sufficient in law on the face thereof?
‘Is the separate defense set out in paragraph Ninth of the defendants' answer sufficient in law on the face thereof?’
In paragraphs ninth and tenth of the answer the defendants realleged, as partial defenses, the matters and facts set forth in paragraphs fourth, fifth, sixth, seventh, and eighth of the answer. Paragraph ninth alleged the partial defense in justification, and paragraph tenth alleged the partial defense in mitigation of damages.
Appeal from Supreme Court, Appellate Division, First Department.
Mason H. Partridge, Jr., of New York City, for appellant.
Charles E. Kelley and Christian S. Lorentzen, both of New York City, for respondents.
The plaintiff Fleckenstein and the defendant Friedman were some time college and later professional football players. In 1932, Friedman wrote and the defendant Collier Company published an article dealing with the amenities of the game. It stated, among other things, that ‘Both games [college and professional] suffer from the occasional player with a mean streak-the bully of boyhood who knows his physical superiority and takes sadistic pleasure in displaying it.’ This theme was first illustrated by reference to the conduct of an anonymous college player and then by reference to Fleckenstein by name, and to the ‘Fleckenstein Formula.’ The formula-‘his idea to play’-was briefly stated as being ‘loser take all-on the chin.’ He was described as ‘a specialist at infighting during scrimmages,’ and as ‘a rough gent who's discreet enough to slug under cover.’
This is an action for libel based upon the publication of the article. The complaint alleges a cause of action for injury to plaintiff's good name, credit, and reputation generally; and another for injury to him in his business or profession of playing professional football. The answer, after denials putting in issue all the material allegations of the complaint except publication, pleads justification as ‘a first defense,’ then realleges the same matter as ‘a partial defense in justification’; and finally realleges it as ‘a partial defense in mitigation of any damages to which the plaintiff might otherwise be entitled.’
The questions certified relate to the sufficiency in law of the defense of justification and of the partial defense in justification.
1. The matter set out in justification is as follows: ‘During the said period, 1927-1931, inclusive, while engaged in playing professional football, in violation of the rules of football, fair play and good sportsmanship and to the detriment of the game of professional football, the plaintiff employed and practiced the unlawful tactics of striking opposing players in scrimmages with the closed fist or the heel of the palm, or of butting opposing players with the knee or elbow in the groin or stomach or face or jumping or falling on the back of opposing players landing on the knees and employing unlawful use of the hands by gouging and choking, and unlawful use of the feet in tripping and unnecessary roughness in charging, blocking and unnecessarily piling and unnecessarily trampling or treading on opposing players with heavy cleated shoes and otherwise playing ‘dirty’ football; and at the time of the publication of the alleged article the fame and reputation of the plaintiff as a professional football player was bad, the plaintiff being generally in disrepute for slugging and the other illegal tactics above enumerated and for playing unsportsmanlike and ‘dirty’ football.'
This is attacked for lack of breadth and for failure to be direct and explicit. Appellant says, moreover, that, while it unquestionably refers to definite acts, it is vague in particularity. No innuendo is pleaded, but it is argued here that the sting of the libel is in depicting plaintiff as striking contemptibly, slyly, and with crafty artfulness while the backs of the officials were turned. That is a matter for the determination of the jury. It might very well be said that the sting abided in the rather obvious charge that plaintiff was a player with a mean streak-a sadistic bully-and that the balance of the article illustrated the charge. Even if we accept plaintiff's view, it still seems to us a jury might well say that the justifying facts mean the same thing. A workable test is whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would...
To continue reading
Request your trial
-
Johnson Pub. Co. v. Davis
...to the defendant may be shown in mitigation of damages. Jacobs v. Herlands, 257 App.Div. 1050, 13 N.Y.S.2d 707; Fleckenstein v. Friedman, 266 N.Y. 19, 193 N.E. 537, and 'Well settled is the basic rule that the amount of plaintiff's recovery may be reduced by proof of facts 'tending but fail......
-
Contemporary Mission, Inc. v. New York Times Co.
...Inc., 800 F.2d 298, 302 (2d Cir.1986), cert. den. ___ U.S. ___, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987), citing Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934). The third and sixth claims of the second amended complaint are not Seventh statement: "As evidence of the honesty of ......
-
Mohr v. Grant
...Court of Appeals agreed, citing a case from another jurisdiction. Mohr, 117 Wash.App. at 86, 68 P.3d 1159 (citing Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934)). However, this court or the trial court, not the jury, determined the gist of reports in at least two seminal def......
-
Goodrich v. Waterbury Republican-American, Inc.
...than the pleaded truth would have produced. Griffin v. Clemow, 28 Conn.Sup. 109, 111, 251 A.2d 415 (1968), citing Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934). Upon examining the statements complained about by the plaintiff, we note that three of them are clearly factual: ......
-
THE DUTY NOT TO CONTINUE DISTRIBUTING YOUR OWN LIBELS.
...would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Fleckenstein v. Friedman, 193 N.E. 537, 538 (N.Y. 1934) (quoted in, among other cases, Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 420 (Tenn. (98) See supra Part VI.E. (99)......