Cruikshank v. Gorden — 15 N.Y. St. Rep. 897

Majority

p. 897

William J. Cruikshank, Resp’t, v. William Gorden, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

1. Libel and slander—Words slanderous per se.

A charge maliciously made against a person in respect to his vocation or trade which, if true, would render him unworthy of employment, is actionable per se.

:2. Same—Repetition op slanderous words mat be shown.

The repetition of the charge may be shown, and the circulation and publicity of the utterances to establish express malice and prove the extent of the injury.

■3. Evidence—Attempt to suppress evidence may be shown.

Attempts to suppress the evidence of a witness may be proven.

Appeal from a judgment entered upon a verdict rendered at a circuit in Kings county, and from an order denying a motion for a new trial, upon the minutes of the trial judge.

W. M. Bosebault, for resp’t; Wm. J. Qaynor, for app’lt.

—The plaintiff is a physician. The complaint alleges^ various causes of action based upon spoken words, charging the plaintiff with ignorance and unskillfulness in his profession. The complaint avers that the slanders were uttered with malice towards the plaintiff, and with the intent to injure him in his profession as a physician. . The proof bears out the complaint fully. The utter

p. 898

anees-were numerous and to different persons, and were to the effect that plaintiff was no doctor; that his treatment would kill the patient, and that persons employing him would murder their own families thereby. The point taken that these words are not actionable per se is not we deem well taken. A charge made maliciously in respect to a vocation or trade of a person, which, if true, would render him unworthy of employment, is actionable per se. Kinney v. Nash, 3 Comstock Rep., 177.

Numerous exceptions were taken on the trial to the admission of evidence showing a repetition of language of the same general import as that counted upon in his complaint. The evidence was proper. The repetition of the charge-may be shown and the circulation and publicity of these utterances to establish express malice and to prove the extent of the injury. Distin v. Rose, 69 N. Y., 122 .

A witness for the plaintiff testifies to one of the slanderous utterances, and in a conversation with the defendant after the papers in the within action were served in respect to the action, testifies that defendant offered him Si, 000 to go to Canada to avoid testifying on the trial. The-real point of the evidence of this witness was an intent.to induce the witness by defendant to “not remember.” The offer was so woven in the narrative that it could not be detached even if it was improper evidence of itself. It is difficult to conceive of a case, when an offer to suppress a witness is inadmissible. In this action it was clearly admissible. It was a virtual admission of the speaking of the slanderous words. The charge in respect to the right of the jury to take into consideration the justification or mitigation set up in the answer if it appeared' from the evidence to have been set up wantonly and without cause is justified in Distin v. Rose ( 69 N. Y., 123 ). The damages are not excessive. The charges are directed at. the plaintiff’s profession—are so numerous and personal as to indicate great malice—if the words were untrue. No proof is given to show their truth, and the case seems to show a malicious speaking of false words addressed to the plaintiff’s competency as a physician for the sole purpose of destroying his-means of livelihood.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.