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Fitzgerald v. Redfield

51 Barb. 484 Court N.Y. Sup. Ct. Decision date 1868-06-01 English

Contents

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p. 484
Fitzgerald vs. Redfield.

Headnote

Words imputing to a mechanic want of skill, or knowledge in his craft, are actionable per se, if "they are clearly shown to have been spoken with reference to the plaintiff’s occupation, and the employment is one requiring peculiar knowledge and skill.
In this respect the authorities recognize no distinction between a learned profession and a mechanical trade; and manifestly there is none, in principle. Per J. C. Smith, J.
Thus, to utter words charging one who is a mason by trade and occupation, with gross want of skill, knowledge and capacity in his craft, and to say, of and concerning him and his trade, “ that he was no mechanic; that he could not make a good wall, or do a good job of plastering; that he was no workman ; and that he was a botch,” is actionable per se.
APPEAR from a judgment entered upon the report of a ■referee.
The action was for slanderous words uttered by the defendant, of and concerning the plaintiff, charging him with want of skill and capacity in his trade or occupation of a mason. The defendant, in his answer, denied the allegations of the complaint; and for a further and second defense averred, that at the times of the alleged speaking of the words charged in the complaint, and for some time
p. 485
previous thereto, the plaintiff was and had been a practical stone and brick mason, carrying on and doing business at the village of Hornellsville, and that during such times the plaintiff had done mason work for the defendant and others, at the village aforesaid and in that vicinity. And that the said mason work done as aforesaid by the plaintiff, was not done in a good, mechanical and workmanlike manner; that the same was poorly and imperfectly done, and that it was generally understood by those with whom the defendant had conversed, and whom he had heard speak of the plaintiff as a mason, that he was not a good mechanic, and that he did not understand his trade and vocation, as a mason, and was not competent to., do, and did not do work in a proper, perfect and workmanlike manner. And the defendant, in speaking of the plaintiff as a mason, intended to speak of him truthfully, as he understood his standing and ability in that regard, without any design or wish to injure him in his trade or vocation. All of which the defendant would prove and insist upon on the trial of. this action, in mitigation of any damages which the plaintiff might establish against him.
On the trial, before the referee, the defendants’ counsel objected to any evidence being given under the complaint, on the ground:
1st. That no cause of action is stated therein.
2d. That no words are alleged to have been spoken which are actionable in themselves; and
3d. That no special damages nor pecuniary are alleged, and asked the referee to dismiss the complaint for the reasons named in such objections. The referee overruled the objections and denied the motion, to which ruling and decision the defendant’s counsel excepted.
The referee having heard the proofs and allegations of the respective parties, found the following facts, viz. That the plaintiff is a mason by trade and occupation,
p. 486
and has since the month of June, 1862, resided at Hornellsville, H. Y. and carried on his said trade since that time as a.means of livelihood. That about the month of June or July, 1865, at Hornellsville aforesaid, a certain conversation was held between the defendant and one Henry S. Frisby, in which the defendant spoke of and concerning the plaintiff) the following words: “ That the plaintiff" could not make a good wall, or do a good job of plastering, and that he was no workman, and that he had always carried the hod till he came here. That he was a botch.” That about the month of February, 1867, at Hornellsville aforesaid, a certain other conversation was held between the defendant and one Andrew Wiles, in which conversation the defendant spoke of and concerning the plaintiff) the' following words, viz. “ That the plaintiff was no mechanic. That if he, (Wiles,) wanted a good job done, he had better get Dick Pinch to do it, that Fitzgerald was no mechanic, and had done nothing in that line but carry the hod till he came to Hornellsville. That he was not down on him, but he did not want him to impose on the people when he ivas nó mechanic, but only a botch.” That about the 10th day of March, 1867, at Susquehanna depot, a certain other conversation was held between the defendant and the said Andrew Wiles, in which conversation the defendant spoke of and concerning the plaintiff the. following words, viz. “ That if not for Davis, (meaning the plaintiff)) trusting out his work, he could not get any.”
That said words were spoken as aforesaid by the defend-, ant of and concerning the plaintiff) and of his occupation as a mason.
The referee found, as conclusions of law, 1st. That said words spoken by the defendant of the plaintiff) and his occupation as aforesaid, were -false and slanderous, and uttered with intent to injure him and his said business.
p. 487
2d. That the plaintiff in consequence thereof, had sustained damages in the sum of $50, for which he was entitled to judgment with costs.
Judgment being entered for the plaintiff, in accordance with the report, the defendant appealed.
Hakes & Stevens, for the appellant.
I. The alleged slanderous words are not actionable per se. To say of the plaintiff that he is “ no mechanic but only a botch,” does not in any manner affect the plaintiff’s character. It involves no charge of moral turpitude. It charges no misconduct in his trade or occupation. “To make the speaking of the words wrongful, they must in their nature be defamatory.” ( Vicars v. Wilcocks, 8 East, 1. 17 N. Y. Rep. 54 . Hallock v. Miller, 2 Barb. 630 Redman v. Pyne, 1 Mod. 19. 1 Hill, on Torts, 317. Jones v. Parde, 1 Mod. 272. Tutty v. Alewin, 11 id. 221.) It necessarily follows that the words must be disparaging to character. It will be seen that in all the cases where words are actionable per se by reason of being spoken concerning one’s trade or occupation, except the learned professions, or tradesmen whose business it is to buy and sell, the slanderous words in some way affected the character by charging dishonesty or misconduct in the business. In the case of Fowles v. Bowen, ( 30 N. Y. Rep. 20 ,) the alleged slanderous words charged the plaintiff' with dishonesty as a clerk.' In this case the court states the rule to be as follows: “Any charge of dishonesty against an individual in con-, nection with his business, whereby his character in such business may be injuriously affected, is actionable.” Approving Van Tassel v. Capron, ( 1 Denio, 250 .) In that case the plaintiff, who was a justice of the peace, was charged as being a blackleg, and being in a combination to cheat strangers. Judgment was given for the defendant and this rule recognized, viz. “Where words are actionable only on account of the official or professional character of
p. 488
the. plaintiff, it is not enough that they tend to injure him in his office or calling, but they must relate to his official or business character, and impute misconduct to him in that character.” In Burtch v. Nickerson, ( 17 John. 217 ,) the charge against a blacksmith of keeping false books, implied misconduct. The definition of the term slander per se, as stated in the elementary works, that it consists in falsely and maliciously charging another with the commission of some public offense, or the breach of some public trust, or with any matter in relation to his particular trade or vocation and which, if true, would render him unworthy of employment, will not, in the light of the adjudged cases, include this case. The phrase “unworthy of employment,” when applied to a mechanic or laborer, must evidently have reference to moral unfitness in connection with the vocation, and not to the relative degree of ability or skill to labor. If otherwise, it would be very unsafe to discuss by comparison or otherwise the relative ability of mechanics to labor.
II. The-facts found by the referee, do not authorize the first conclusion of law found by him in his report. The words spoken, as found by the referee, were not false and slanderous, and uttered with intent to injure the plaintiff in his business, as matter of law. The fact that' the plaintiff was a mason by trade and occupation does not determine any particular degree of skill or ability as a mechanic of which courts will take judicial notice, either to make a wall or do a job of plastering. The word “ botch ” when applied to a mason is not a very severe term. It refers to the work done, and not to the person. The other words are words of comparison. Hot any of the alleged words imply malice as matter of law. They do not charge the plaintiff with any illegal or immoral act, nor are they sufficiently censorious to base an action of slander upon. (Hallock v. Miller, supra.)
p. 489
III. The referee, not having found as a fact that the plaintiff sustained any damage, was not authorized to find as he did in his report, that as matter of law “ the plaintiff, in consequence thereof, has sustained damages in the sum of $50.” If the words were actionable without any special damage, as matter of law the plaintiff only sustained nominal damages. The statute, (0ode, § 272,) is imperative that the referee shall find his conclusions of fact and law separately. The referee has complied with this statute. After the referee, who is the court, has declared the law from the facts found, that the plaintiff has sustained $50 damages, the plaintiff is not at liberty to claim that the court intended something different from that stated in the written report, which is equivalent to a decision of the Supreme Court, to stand as the law of the case until reversed.
IV. The referee erred in denying the motion for a non-suit, and in overruling the defendant’s objections to any evidence being given under the complaint.
Bemis & Near, for the respondent.
I. The words laid in the complaint, and found proved by the referee, are actionable, per se. In the conversation had with the witness Wiles, the defendant, among other things, said, “ That the plaintiff was no mechanic, and had done nothing in that line except carry the hod, till he came to Hornellsville.” “ That he was not down on him, but did not want him to impose on the people when he was no mechanic, but only a botch. That Wiles had better get Pinch to do the work. That if it was not for his trusting out his work he would not get any.” In the conversation with Frisby, the defendant said, “ That the plaintiff could not make a good wall or a good job of plastering, and that he was no workman.” “ That he was a botch.” These conversations were directed very plainly to the plaintiff" in his vocation or trade and were clearly so directed with a view to
p. 490
prevent bis being employed by Wiles and Frisby, and are connected with much other conversation tending to injure the plaintiff in his business, and showing malice. There is no doubt or dispute about the plaintiff’s being at the time engaged in carrying on the business of a mason for a livelihood. That is slanderous which spoken of the plaintiff in his business, “ may impair or hurt his trade or livelihood.” (3 Black. Com. 123.) Also, it is' slanderous to charge another with “ any matter in regard to his trade or vocation, which, if true, would render him unworthy of employment. (1 Kent's Com. 628, 9th ed. 1 Starkie on Slander, pp. 136, 137.) “The action extends to words spoken of a person in any lawful employment.” (1 Starkie, 127.) “The humility of the employment or occupation is no objection, either in law or reason, to the action.” ' (Id. 128.) “ The words are actionable, whether they relate to the plaintiff’s honesty, his credit, or the excellence of the wares in which he deals.” (Id.) The words “He knows not how to make a watch,” are actionable. (1 Mo\dj¡^ 19.) To accuse a midwife of ignorance, is actionable. (1 Vent. 21.) To say a physician is no scholar, is actionable. (6 Bacon's Abr. 215.) These cases sufficiently answer the appellant’s claim that words, to be actionable, must impute moral turpitude.
II. But special damages are alleged and proved as laid in the complaint. This might properly be shown, either as the gist of the action, or as matter of aggravation. (2 Starkie on Slander, 62.) Wiles shows the loss of his work by the plaintiff wholly from the words spoken by the defendant. Frisby’s evidence shows the same as to his work. Loss of a customer is special damage. (1 Starkie on Slander, 203. 1 Wend. 506 . 2 Hill, 309 .) The assertion made by the defendant’s counsel, that Wiles and Frisby did not own the lots where the woik was done, was without any force, as it could not be material who had title, so long as Wiles and Frisby employed the men, and
p. 491
gave out or withheld employment, as they saw fit. As to these parties, it was the work of whoever exercised the power of employing the workmen, as that power was all that was material in this case.
III. Terwilliger v. Wands, ( 17 N. Y. Rep. 54 ,) and Hallock v. Miller, ( 2 Barb. 630 ,) have no application to a case where the words relate to the plaintiff in Ms vocation ox trade. Each of these decisions rests upon grounds entirely without force or application in this case.
IV. Ho exception can he available that the conversation alleged with Frisby took place at a different time from that set out in the complaint. It not being barred by the statute of limitations, “ the allegation of time is immaterial.” ( 22 Barb. 87 .)

The plaintiff is a mason by trade and occupation, and carries on his trade as a means of livelihood. The defendant, at various times, uttered words charging the plaintiff with gross want of skill, knowledge and capacity in his craft, and, among other things, said of him, “that he was no mechanic; that he could not make a good wall, or do a good job of plastering; that he was no workman; and that he was a botch.”

The only question is whether the words proved, having been publicly spoken of and concerning the plaintiff, and of his trade, are actionable per se. It is claimed by the counsel for the appellant that they are not actionable, as they involve no charge of moral turpitude or of misconduct on the part of the plaintiff in his trade or occupation, and therefore do not in any manner affect his character. But in actions founded on this species of defamation, the question is not whether the plaintiff has suffered in his general reputation; it is whether he has been prejudiced in his employment. It is said by a learned author that if the injurious words clearly relate to the plaintiff, and his

p. 492
occupation, they are actionable, whether they affect his integrity, his knowledge, skill or diligence, his credit or the subject matter in which he deals. (Starkie on Slander, 130.) It is contended, however, by the appellant’s counsel that the rule above stated extends only to words spoken of men in their office or profession, and does not apply where the employment is of a mere mechanical nature. But that is not the law. The only distinction between the ' learned professions and mere mechanical occupations in respect to the nature of the words necessary to maintain the action, is stated by the same author, thus: “ Where the office, profession or employment of the plaintiff, requires great talent and high mental attainments, general words, imputing want of ability, are actionable, without express reference to his particular character, for they necessarily include an ability to discharge the duties of such a situation; but where the employment is of a mere mechanical nature, the words, to be actionable, must be applied to it clearly and unequivocally.’’ (P. 136.) The author refers to several cases illustrating each branch of the rule. Thus, on the one hand, it has been held, that to say of a barrister, generally, that he is a “dunce,” is actionable, the word dunce being commonly taken to mean a person of dull capacity, who is not fit to be a lawyer. (Peard v. Johnes, Cro. Car. 382.) So, to say of a physician that he is “no scholar,” is actionable, a learned education being considered to be an essential qualification in the medical profession. (6 Bacon’s Abr. 215.) On the other hand, it has been held that it is actionable to say of an apothecary, “ It is a world of blood he has to answer for in this town; through his ignorance he did kill a woman and two children at Southampton;” and to say of a midwife, “ Many have perished for her want of skill;” these words being spoken with reference to the particular occupation of the plaintiff, and clearly imputing a want of knowledge, skill or diligence in its exercise.
p. 493
[Monroe General Term,

June 1, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

In the case of Redmond v. Pyne, (1 Mod. 19,) the words spoken of a watchmaker were, “He is a bungler, and knows not how to make a good piece of work.” After verdict for the plaintiff, the words, on motion in arrest of judgment, were held by the court not to be actionable, not having been laid to.be of the plaintiff’s trade; but it was said that had the words been, “ he knows not how to make a good watch,” they would have been actionable.

Hpon authority, therefore, words imputing tó a mechanic want of skill, or knowledge in his craft, are actionable per se, if they are clearly shown to have been spoken with reference to the plaintiff’s occupation, and the employment is one requiring peculiar knowledge and skill.

In this respect the authorities recognize no distinction between a learned profession and a mechanical trade, and manifestly, there is none in principle.

In the present case, not only did the words themselves distinctly refer to the plaintiff’s trade, but the referee has found the fact that they were spoken of and concerning the plaintiff, and of his occupation as a mason.

The judgment should be affirmed.

Judgment affirmed.

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