Nichols v. Item Publishers, Inc. , 309 N.Y. 596 ( 1956 )

Fuld, J.

This appeal is concerned with the sufficiency of the complaint in a suit for libel. It alleges two causes of action, one on behalf, of the Beverend John H. Nichols, assertedly pastor of the Mt. Zion Baptist Church of Port Chester, and a second on behalf of the church itself. Plaintiffs claim that both were defamed by a news item which appeared in the Daily Item, a Port Chester newspaper owned and operated by defendant. The article purported to report the outcome of certain court actions brought by Beverend Nichols, the church and another person “ against 22 members of the congregation ”. It mentioned, among other things, the jury’s 11 dismissal ” of “ an action for $50,000 brought by the church corporation against the congregation, in which the church claimed it was prevented from holding services ”, and of one brought by Beverend Nichols “ claiming conspiracy to force him out as pastor ”. The article, referring to him as the “ former pastor,” states that, “ In finding for the defendants, the jury also declared the Rev. Mr. Nichols was not pastor of the church ” and that he “was removed as pastor of the Church by the congregation in 1947. On Jan. 25, 1949, after a 36-day trial, Judge George H. Taylor, Jr., found the removal proper, Mr. Young explained. It was alleged that supporters of the Rev. Mr. Nichols held a meeting in March, 1949, in which they recalled him as pastor ‘ for life.’ But the jury decided there had been no legal meeting, and that thus the pastor had not been recalled ” (italics appear in complaint).

The complaint further recites that the article is false and defamatory in that the individual plaintiff is, and has been at all the times mentioned, the pastor of the church, and a copy of the minutes of the jury’s verdict is annexed to demonstrate that it made no finding that he was not pastor or that the 1949 meeting which recalled him was not ‘ ‘ legal. ’ ’ The statement that the action was against 1 ‘ 22 members of the congregation ’ ’ is also labeled false and defamatory, since the 22 defendants ‘ ‘ were riot members of the congregation because they had failed to regularly worship and regularly contribute to the said church ”.

No special damages are alleged, it being claimed that the publication injured Nichols in his capacity as pastor, causing ‘ ‘ great damage to his good name, reputation and professional standing as a pastor and preacher in the community ’ ’. As to the church, the complaint asserts that it was injured in its good name and reputation because the article “ took sides ” with the 22 defendants and “ had an unwholesome effect on the minds of its readers,” causing the church “ to lose face in the eyes of its congregants with resulting loss in membership, worshippers and income ’ ’. Each of the plaintiffs demands a judgment for $10,000 against defendant.

Defendant moved to dismiss the complaint for insufficiency. The court at Special Term denied the motion, but the Appellate Division reversed and granted dismissal upon the ground that it ‘1 fails to allege words that are actionable per se, and no special damages are pleaded.” Whether that decision was correct is the only question before us.

The general rule, we stated in Mencher v. Chesley (297 N. Y. 94, 100), is that “ A writing is defamatory — that is, actionable without allegation or proof of special damage — if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him.” And to that listing of the defamatory should be added a writing which tends to disparage a person in the way of his office, profession or trade. (See, e.g., Nih v. Bolman, 307 N. Y. 725; Rager v. McCloskey, 305 N. Y. 75, 79; Kleeberg v. Sipser, 265 N. Y. 87; Sanderson v. Caldwell, 45 N. Y. 398, 405; Potter v. New York Evening Journal Pub. Co., 68 App. Div. 95, 99.) The publisher of a libel may not, of course, escape liability by veiling a calumny under artful or ambiguous phrases and, if any common-sense construction of what was written justifies or supports a defamatory meaning, it will be for the jury, not the court on motion, to decide whether the writing was or was not defamatory. (See Mencher v. Chesley, supra, 297 N. Y. 94, 102.) However, on the basis of any reasonable reading of the publication before us, it is impossible to conclude that it says or implies anything that could subject either of the plaintiffs to contempt or aversion, induce any unsavory opinion of them or reflect adversely upon plaintiff Nichols’ work or upon him as pastor of the church or as cleric generally.

That the Reverend Nichols was, in fact, pastor, contrary to the article’s report, only demonstrates its falsity, not its defamatory character. Other than this, it declares only that he was removed in 1947, and that a meeting in 1949 which voted his recall was deemed illegal by a jury, so that, as a result of a court decision, he is no longer pastor of the church. Nothing in the article reflects in any way on his personal or professional integrity or ability. It assigns no reason for his removal or for the opposition to him by the 22 defendants, such as incompetency, misconduct or any other behavior that could be said to disparage him personally or in his profession as a clergyman.

The mere fact of one’s removal from office carries no imputation of dishonesty or lack of professional capacity. (Cf. Thompson v. Hamilton, 229 N. Y. 591; Rossiter v. New York Press Co., 141 App. Div. 339, 344.) It is only when the publication contains an insinuation that the dismissal was for some misconduct that it becomes defamatory. (See Rossiter v. New York Press Co., supra, 141 App. Div. 339, 344; Ramsdell v. Pennsylvania R. R. Co., 79 N. J. L. 379.) The rule is no different for a clergyman, exalted and sensitive though his post may be. A charge against him, to be actionable, must still “be such as, if true, would tend to prove him unfit to continue his calling” (Potter v. New York Evening Journal Pub. Co., supra, 68 App. Div. 95, 99), such as, for example, that he used foul language in a courtroom (see Potter v. New York Evening Journal Pub. Co., supra, 68 App. Div. 95) or that he “ juggled ” moneys taken on the collection plate. (See Curtis v. Argus Co., 171 App. Div. 105.) The suggestion that the article may provoke “ Idle, unfounded and baseless rumors ” that plaintiff is “ anything from ‘ thief ’ to 1 imposter ’ ” (opinion of Conway, Ch. J., p. 603), resting as it does entirely on sheer speculation, furnishes no basis for holding the writing defamatory.

Nor does the church stand in any better position, with reference to the sufficiency of the complaint, than does the individual plaintiff. The only mention of the church itself is the report that its claim against the 22 defendants for preventing it from holding services was dismissed. At its worst, the article conveys to the reader that there is a controversy over control of the church, with 22 insurgent members — or ex-members — challenging, particularly, Reverend Nichols’ claim to the pastorate.

The language is unambiguous. Under no reasonable construction may it be read or regarded as defamatory of either of the plaintiffs. And, quite apart from other considerations, since no “ actual temporal damage ” is alleged, the complaint may not be upheld on any prima facie tort or intentional falsehood theory. (Rager v. McCloskey, supra, 305 N. Y. 75, 80-81.) Accordingly, the complaint was properly dismissed by the Appellate Division.

The judgment appealed from should be affirmed, with costs.