Hoeppner v. Dunkirk Printing Co.

• Citation: 254 N.Y. 95,172 N.E. 139
• Parties: HOEPPNER v. DUNKIRK PRINTING CO.
• Decision Date: 03 June 1930
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 95

172 N.E. 139

HOEPPNER

v.DUNKIRK PRINTING CO.

Court of Appeals of New York.

June 3, 1930.

Actions by Karl Hoeppner against the Dunkirk Printing Company. From orders of the Appellate Division (227 App. Div. 130, 237 N. Y. S. 123), reversing as matter of law orders of the Special Term granting defendant's motions for judgments on the pleadings and certifying to the Court of Appeals questions whether the complaints state facts sufficient to constitute a cause of action, defendant appeals.

Order in the first action affirmed and question answered in the affirmative, and order in the second action reversed, that of the Special Term affirmed, and question answered in the negative.

HUBBS, J., dissenting in part.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Glenn W. Woodin, of Dunkirk, for appellant.

Anthony Johnson, of Dunkirk, for respondent.

CRANE, J.

The Dunkirk High School of the city of Dunkirk, county of Chautauqua, has a football team which during the football season plays in competition with the teams of other high schools and preparatory institutions. In 1928 the team met with certain reverses which touched the pride of local admirers. The playing of the team was severely criticized by the Dunkirk Evening Observer, published by the defendant, a paper having considerable circulation throughout the state. Plaintiff was the teacher in physical education in the Dunkirk High School, and the head coach of the team. What the Observer said about the team was taken by the plaintiff as a reflection upon his ability as a coach, and he thereupon brought actions for libel.

The number of pages devoted to sports in the daily issues of all our newspapers gives some idea of the keen interest which the public takes in these affairs. Any one who has attended a college baseball or football game has experienced the keen enjoyment and satisfaction which the spectators take in shouting advice and criticism to the players. It is impossible to disassociate a sport contest of any magnitude from public criticism, hero worship, and excuses for defeat. The chief reason why sports make an appeal to the American public is because they afford an outlet for pent-up feelings and enthusiasm. Sport is the safety valve which prevents us from blowing up through other and more dangerous forms of excitement. It does much to keep the body politic in a healthy and happy frame of mind.

When the plaintiff assumed the position of physical instructor and coach to the football team of the Dunkirk High School, he was no exception to the habits and customs which have become a part of the game. His work and the play of his team were matters of keen public interest; victories would be heralded, defeats condemned. The same enthusiasm which welcomed the home-coming of the Roman conqueror now finds expression in the plaudits of the bleachers and the grand stand. The conquered now appear, not in chains, but what may be far worse, amidst ridicule and derision-the boo-hoos of the crowd.

The Dunkirk High School football team and its coach were therefore the subjects of fair comment and criticism in the public press and in sporting circles, and no matter how severe, caustic, or ridiculous this criticism was, it afforded no occasion for an action of libel or slander. Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments of criticisms are not libelous, however severe in their terms, unless they are written maliciously. Thus, it has been held that books, prints, pictures, and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspaper criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be. Hamilton v. Eno, 81 N. Y. 116;Triggs v. Sun Printing & Pub. Ass'n, 179 N. Y. 144, 71 N. E. 739, 66 L. R. A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326;Bingham v. Gaynor, 203 N. Y. 27, 32,96 N. E. 84;Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323,54 L. R. A. 855, 89 Am. St. Rep. 365;Gandia v. Pettingill, 222 U. S. 452, 32 S. Ct. 127, 56 L. Ed. 267;Bearce v. Bass, 88 Me. 521, 34 A. 411,51 Am. St. Rep. 446; Newell on Slander & Libel (4th Ed.) p. 519.

For the present it makes no difference whether we call this right of criticism, which is free for all, and not the special privilege of the press, a qualified privilege (Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322), or consider it as no libel (Van Lonkhuyzen v. Daily News Co., 203 Mich. 570, 571, 170 N. W. 93;Schwarz Bros. Co. v. Evening News Pub. Co., 84 N. J. Law, 486, 491, 87 A. 148;Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242, 28 N. E. 1,13 L. R. A. 97). The difference in terminology is probably due to the form of pleading. If the public occasion, a matter of public interest, appears upon the face of the complaint, the law of fair comment applies, whereas, if the libelous words (and of course they must be libelous) are alleged in the complaint without the setting or occasion for their utterance, then the fact that they were written as criticism and comment on a matter of public interest must be set forth in the answer as a defense-in the nature of a special privilege. Thomas v. Bradbury, Agnew & Co., Ltd., [1906] 2 K. B. [C. A.] page 627, at page 640.

The articles appearing in the Dunkirk Evening Observer are set out in the complaint as follows:

Action No. 1.

‘COACHING SYSTEM CONDEMNED

‘FOR TERRIFIC LACINGS GIVEN

‘DUNKIRK HIGH FOOTBALL TEAM

‘Squad Has Abundance of Latent Ability Which Has Not Been Brought Out by Proper Drilling-Lack Fundamental Knowledge of Game-Plays and Formations Are Antique.

‘The terrific drubbing handed the Dunkirk High School football team by Warren on last Saturday afternoon, following hard on the North East setback of the previous week, has swung the vast group of local ‘bleacher coaches' into vocal activity and innumerable remedies have been suggested as a means of eradicating or at least subjugating some of the more apparent faults displayed by the Maroon eleven.

‘Lack of knowledge of the fundamentals of the game, low morale particularly when the ‘breaks' are going against them, paucity of plays furnished, antiqueness of plays and formations being used, the lack of a modern coaching system and other causes too numerous to mention have been enumerated by the dopesters in their indignant discussions following last Saturday's slaughter.

‘It is interesting to note here that no one offered ‘lack of material’ as the reason for Dunkirk's dismal showings thus far this season, the concensus of opinion being that the squad this year is the best since the days of Hub Henning, ‘Ollie’ Weigle and Leo Kornprobst.

‘SQUAD NEEDS GOOD DRILL

‘That the Hoeppner-coached squad is in dire need of a good drill in the rudiments of the game was apparent to even the casual spectator at last Saturday's contest. The work of the local youngsters in catching punts, blocking and charging, and particularly in tackling was slip-shod and demonstrated a lack of knowledge. On an astonishing number of plays the Warren balltoter would be ‘tackled’ by three or four Dunkirk players before he was finally brought to earth after gaining 10 to 15 yards more than he should have. This dainty manner of tackling was also displayed in the North East game. Three Warren punts were fumbled about by Dunkirk receivers and other kicks were juggled and almost lost. As for the line charging and interference for the ball carrier-nothing much can be said for that.

‘NO DIVERSITY OF PLAYS

‘The fact that the same five or six plays are used constantly throughout the game by Dunkirk makes things much easier for the Maroon's opponents and after the first few minutes the visitor know in exactly what direction to look for the action. On some occasions when the team has played Dunkirk several preceding years even the above mentioned few minutes are not necessary. A local quarterback of quite a few seasons back recently made the remark that he believed he could run this year's team, as the plays this season looked to be the same ones his outfit used at the high school in the dim and dusky past.

‘Perhaps some one will claim that the old plays and formations still work. They do sometimes-North East used the old Statute of Liberty play here successfully and Warren dug the shoe string play out of its grave and failed only because of a poor pass to the ‘sleeper’ near the sidelines. However, an alert, well-coached team would smother plays of this sort before they were well started.

‘TEAM HAS LATENT ABILITY;

‘MUST BE BROUGHT OUT

‘The 1928 Dunkirk High School football team has the latent ability to play a brilliant game as they conclusively showed during the first period of the North East game. A flashy, speedy backfield behind a heavy, fast line ripped the opposition to pieces during the first few minutes. When the tide turned and North East scored, the local team's play gradually crumpled into a mere shadow of what it had been. They just didn't seem to know what to do next.

‘Against Warren the Maroon team showed its hidden power but only for very brief spurts.

‘The local followers of the game-and there are many-are wondering why the wealth of material on this year's team is not used to the greatest possible advantage; why the natural ability of many members of the Maroon squad is not polished up and improved upon through a thorough, intelligent and modern coaching system so that when out-of-town schools book the local high, they will be scheduling a game with a feared and worthy adversary rather than merely arranging a practice workout as has been the case in recent years.’

Action No. 2.

‘DUNKIRK HIGH TROUNCES

‘FALCONER 37-0 IN SETUP

‘SECOND WEAK TEAM TO FACE MAROON IN TWO WEEKS

‘Morrissey, Milner, Domenico Feature.

‘Smashing their way through a tissue paper line which the second string...