Shenkman v. O'Malley

Decision Date27 November 1956
Citation2 A.D.2d 567,157 N.Y.S.2d 290
PartiesSamuel SHENKMAN, Plaintiff-Respondent, v. Walter F. O'MALLEY, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

J. Howard Carter, New York City, of counsel (James W. Rodgers and Andrew L. Hughes, New York City, with him on the brief; Townley, Updike, Carter & Rodgers, New York City, attorneys), for appellant.

Boris Marcus, New York City, of counsel (Benjamin Schenkman, New York City, with him on the brief, Marcus & Schenkman, New York City, attorneys), for respondent.

Before PECK, P. J., and BREITEL, COX, FRANK and BERGAN, JJ.

BREITEL, Justice.

In this action for slander, on motion, three complete defenses and two partial defenses, interposed in the amended answer, have been attacked on the ground of legal insufficiency. Defendant appeals, and urges reinstatement of each of the defenses.

It is concluded that the partial defenses are legally sufficient and should be sustained, for they tend to negate malice and are, therefore admissible in mitigation of damages; that the second complete defense is sufficient; but that neither the first nor the third complete defense is sufficient and they were properly stricken. Defendant, however, should be permitted to replead the first complete defense, since there is a possible defense based on the 'rolled up plea' of truth and fair comment.

Plaintiff is a physician, and defendant is the president of the professional baseball team, best known as the Brooklyn Dodgers. One of the team's starring players, Roy Campanella, suffered a hand injury, which gravely interfered with his playing. An operation was performed by one Dr. Fett to remove a bone chip. Some months later, plaintiff physician recommended and performed a second operation affecting a nerve in the hand. He submitted a bill for his professional services to Mr. Campanella and, later, to defendant O'Malley's corporation in the sum of $9,500. The bill was not paid. Plaintiff physician sued to recover his fee, and through his lawyer, by filing the suit papers and contemporaneous statements, obtained wide publicity, the purport of which was that neither Mr. Campanella nor the Brooklyn Dodgers was paying for an operation which had rehabilitated Mr. Campanella's playing capacity.

The statements of plaintiff Shenkman, through his lawyer, upon which defendant O'Malley relies in asserting his defenses are contained in two newspaper accounts attached as exhibits to the amended answer. The first read as follows:

'I sent the $9,500 bill to Mr. Campanella and it was promptly returned with the suggestion that the Brooklyn Dodgers Baseball Club was responsible for the bill.

'Then I sent it to the club, and they immediately sent it back, informing me that Campanella alone was responsible for payment.

'Between Campanella and the club, I have been paid nothing.'

Earlier in the newspaper account plaintiff Shenkman was quoted as having said that Mr. Campanella had 'refused to pay one cent.' In another newspaper the quoted statement read as follows:

'After it was over, Campy expressed his deep gratitude and told Dr. Shenkman to send the bill to the Brooklyn Ball Club.

'He sent the bill there and then the Dodger front office said it wasn't their baby. They disclaimed any responsibility for it. And though Roy was grateful at first, he has apparently forgotten his obligation.'

The second newspaper account also contained the general statement that 'A neuro-surgeon charged today that the Dodgers baseball management has run out on the bill for the operation which brought Roy Campanella's left hand and big bat back into the lineup this year.'

Whether these statements are defamatory is not before the court. For the purposes of the second complete defense it will be assumed, as it is alleged by defendant O'Malley, that such statements are defamatory.

Upon release of plaintiff's publicity, defendant O'Malley issued a statement to the press--the subject of this slander action. The statement, as set forth in the answer, 1 reads as follows:

'I am shocked at the self-serving story appearing in evening papers in support of Dr. Shenkman's exorbitant claim of $9,500 for what will probably prove to be an unnecessary second operation on Roy Campanella's hand. The medical profession appreciates that the original operation was successfully performed by a recognized specialist, Dr. Herbert Fett. Dr. Shenkman telephoned me in February and was most anxious to settle his claim, and admitted that he had not fixed a price or advised Roy that he contemplated such a charge. It appears that he thought he was operating on Roy's bankroll. I told him his charge was unconscionable and suggested he sue. He offered to arbitrate before a committee of doctors. I told him I preferred a jury of people who pay doctor's bills not send them. It took Dr. Shenkman a long time to get up courage to sue.'

It will be observed immediately that the statement contains, among others, the following significant representations. The first is that the physician's claimed fee is exorbitant. The second is that the second operation was probably unnecessary. The third is that, by way of opinion, the medical profession believes that the first operation had been successful. The fourth is that plaintiff physician thought he was operating on the patient's bankroll, rather than on his hand.

The questions involved are raised by three complete defenses and two partial defenses. The first complete defense is the 'rolled up plea' of truth and fair comment. The second complete defense is the qualified privilege of reply to a defamatory attack. The third complete defense is the qualified privilege of protection of business interests in response to attack. The first partial defense, in effect, asserts that defendant O'Malley relied on the opinions of the medical profession in making the statement involved in the action in replying to the attack upon him and his professional baseball organization. The second partial defense is of similar purport and is based upon the provocation caused by the publicity instigated in connection with the lawsuit commenced by plaintiff physician to recover his professional fee.

It is beyond dispute that the subject matter of defendant O'Malley's statement (and assumed, but not decided, for the purpose of considering the pleaded defenses, to be defamatory) is in the area of the public interest and, hence, subject to fair comment. The Brooklyn Dodgers and its players receive persistent national publicity and, on occasion, world-wide attention. Medical treatment of such players, especially in reference to their capacity to play, is likewise a matter of general comment and interest. This aspect of the defenses, therefore, requires no further discussion.

In a civil defamation action, truth of the attributed statement is a complete and absolute defense. When the attributed statements, however, are not true, and the plaintiff has been defamed thereby, nevertheless, a privilege, absolute or qualified, may obtain, provided, certain preconditions dictated by public policy are fulfilled. (Restatement, Torts, § 582 et seq.; Prosser, Torts, 2nd Ed. § 95.) Thus, if with respect to a matter of public interest, one expresses a defamatory opinion, based upon facts truly stated, there is, in the absence of malice, a complete defense. Bingham v. Gaynor, 203 N.Y. 27, 96 N.E. 84. The policy is to permit, within reasonable limits, free and intelligent discussion of matters in the public interest. Such discussion could not be effected, if reasonably-drawn inferences resulted in liability, merely because they should prove to be wrong. Foley v. Press Publishing Co., 226 App.Div. 535, esp. at page 548, 235 N.Y.S. 340, 355. But the privilege of fair comment applies only when the facts are truly stated. Ibid. 226 App.Div. at page 544, 235 N.Y.S. at page 351. It has never been applied to an opinion expressed and based upon the opinions of others, which may or may not be true. Skinner v. Powers, 1 Wend. 451; Patten v. Harper's Weekly Corp., 93 Misc. 368, 158 N.Y.S. 70; Stafford v. Stafford, 165 App.Div. 27, 150 N.Y.S. 212; cf. Cassidy v. Gannett Co., Inc., 173 Misc. 634, at page 640, 18 N.Y.S.2d 729, at page 735.

In the first complete defense, defendant O'Malley does not allege that his comment was based upon facts truly stated. On the contrary, the so-called 'facts' upon which he relies are the opinions of physicians that the first hand-operation was 'successful' and the opinion of the medical profession that such operation was successfully performed by a recognized specialist. It is not made clear that the successfulness of the first operation means any more than successful removal of a bone fragment from the hand of the patient, as distinguished from being successful in accomplishing the ultimate objective of restoring the full use of the hand to the patient. Moreover, it is not even clear from the allegations that the 'success' of the first operation signifies that no further operation was required or was desirable. In any event, even these 'facts' are not asserted as objectively true, but simply as the opinion of experts. This falls short of the basis for fair comment. (Gatley, Libel and Slander [4th Ed.], pp. 346 et seq.)

It is true, that upon a trial, the nature and the successfulness of the first operation would be proven, undoubtedly, by opinion testimony, namely, through the lips and the opinions of experts. Nevertheless, it would be incumbent upon the jury, after being properly charged, to find the objective facts as distinguished from the opinions of the experts. Clemons v. Mellon, 27 App.Div. 349, 49 N.Y.S. 1129. 2 As defendant has pleaded, it would suffice if the jury were to find merely that defendant relied on the extra-judicially expressed opinions of experts, regardless of whether those opinions were, in fact, right or wrong.

No considerations of public policy make it...

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