Moore v. Francis

probably not responsible for what he said, had caused some bad rumors.”

The complaint is in the usual form and charges that the publication was false and malicious, made with intent to injure the plaintiff in his good name and credit in his occupation as bank teller, and to cause it to. be believed that by reason of mental derangement he had become incompetent to discharge his duties and had caused injury to the bank, etc.

The court on the trial was requested by the plaintiff’s counsel to rule as a question of law that the publication was libelous. The court refused, but submitted the question to the jury. The jury found a verdict for the defendants, and as the verdict may have proceeded upon the finding that the article was not libelous, the question is presented, whether it was per se libelous. If it was, the court erred in leaving the question to the jury. It is the settled law of this state that in a civil action for libel, where the publication is admitted and the words are unambiguous and admit of but one sense, the question of libel or no libel is one of law which the court must decide. Snyder v. Andrews, 6 Barb., 43 ; Matthews v. Beach, 5 Sandf., 256 ; Hunt v. Bennett, 19 N. Y., 173 ; Lewis v. Chapman, 16 id., 369; Kingsbury v. Bradstreet Co., 116 id., 211; 26 N. Y. State Rep., 520.

Of course, an error in submitting the question to the jury would be harmless, if their finding that the publication was not libelous was in accordance with its legal character. The import of the article, so far as it bears upon the plaintiff, is plain and unequivocal. The words amount to a distinct affirmation, first, that the plaintiff was teller of the bank; second, that while acting in this capacity he became mentally deranged; third, that the derangement was caused by overwork; fourth, that while teller and suffering from this mental alienation, he made injurious statements in respect to the bank’s affairs which occasioned it trouble.

The cases of actionable slander were defined by Chief Justice DeGrey in the leading case of Onslow v. Horne, 3 Wilson, 177, and the classification made in that case has been generally followed in England and this country. According to this classification slanderous words are those which (1) import a charge of some punishable crime, or (2) impute some offensive disease which would tend to deprive a person of society, or (3) which tend to injure a party in his trade, occupation or business, or (4) which have produced some special damage.

Defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken. Actions of slander for the most part are founded upon such imputations. But the action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. The first and larger class of actions are those brought for the vindication of reputation, in its strict sense, against damaging and calumnious aspersions. The other class fall, for the most part, at least, within the third specification in the opinion of Chief Justice DeGrey, of words

which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case, although no fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action not only to protect a man’s character as such, but to protect him in his occupation also against injurious imputations. It recognizes the right •of a man to live and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 Dowl. & R., 649 : “ Whatever words have a tendency to. hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable.” Where proved to have been spoken in relation thereto, the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words, and resulting damage, are presumed. 1 Saund., 243 n; 1 Am. Ldg. Cas., 135.

The authorities tend to support the proposition that spoken words imputing insanity are actionable per se when spoken of one in his trade or occupation, but not otherwise without proof of special damage. Morgan v. Lingen, 8 L. T., 800; Joannes v. Burt, 6 Allen, 236 . The imputation of insanity in a written or printed publication is a fortiori libelous where it would-constitute slander if the words were spoken. Written words are libelous in all cases where if spoken they would be actionable, but they may be libelous where they would not support an action for oral slander. There are many definitions of libel. The one by Hamilton in his argument in People v. Croswell, 3 Johns. Cas., 336 , viz.: “ A censorious, or ridiculing writing, picture, or sign, made with malicious intent towards government, magistrates or individuals,” has been often referred to with approval. But unless the word censorious is given a much broader signification than strictly belongs to it, the definition would riot seem to comprehend all cases of libelous words. The word “ libel,” as expounded in the cases, is not limited to written or printed words which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or censure him. In the case before referred to, words affecting a man injuriously in his trade or occupation may be libelous, although they convey no imputation upon his character. Words, says Starkie, are libelous if they affect a person in his profession, trade or business, “ by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness, or want of any necessary qualification in the exercise thereof.” Starkie on Slander, § 188.

The cases of libel founded upon the imputation of insanity are few. The declaration in Morgan v Lingen, supra, contained a count for libel and also for verbal slander. The alleged libel was in a letter written by the defendant, in which he states that

“he had no doubt the plaintiff’s mind was affected, and that seriously,” and also that “she had a delusion,” etc. It appeared that the defendant had also orally stated, in substance, the same thing. It was claimed that the writing was justified. Tl^e-plaintiff was a governess. Martin, B., in summing up to the jury, said that “a statement in writing that a lady’s mind is affected,, and that seriously,is, without explanation, prima facie a libel.” In respect to the slander, he said “he thought there was no evidence of special damage. The jury must, therefore, consider whether the defendant intended to use the expression he did with reference to the plaintiff’s profession of governess.”

In Perkins v. Mitchell, 31 Barb., 465 , it was held to be libelous to publish of another “ that he is insane and a fit person to be sent to the lunatic asylum,” Emott, J., saying: “ Upon this point the case is clear.” Rex v Harvey, 2 Barn. & Cress., 257, was an information for libel for publishing in a newspaper that the king “ labored under mental insanity and that the writer communicated the fact from authority.” The judge charged that the publication was a libel and the charge was held to be correct. The foregoing are the only cases we have noticed upon the point whether a written imputation of insanity constitutes a libel. Several of the text writers state that to charge in writing that a man is insane is libelous. Addison on Torts, 768; Townshend on Slander, § 177; Starkie on Slander, § 164; Ogden on Libel, 23.

The publication now in question is not simply an assertion that the plaintiff is, or has been, affected with “mental derangement,” disconnected with any special circumstances. The assertion was made to account for the trouble to which the bank had been subjected by reason of injurious statements made by the plaintiff while in its employment. Words to be actionable on the ground that they affect a man in his trade or occupation, must, as is said, touch him in such trade or occupation; that is, they must be shown, directly or by inference, to have been spoken of him in relation thereto, and to be such as would tend to prejudice him therein, Sanderson v. Caldwell, 45 N. Y., 405 , and cases cited. The publication did, we think, touch the plaintiff in respect to his occupation as bank teller. It imputed mental derangement while engaged in his business as teller, which affected him in the discharge of his duties. The words conveyed no imputation upon the plaintiff’s honesty, fidelity or general capacity. They attributed to him a misfortune, brought upon him by an over zealous application in his enqiloyment.

While the statement was calculated to excite sympathy and even respect for the plaintiff, it nevertheless was calculated also to injure him in his character and employment as a teller. On common understanding, mental derangement has usually a much more serious significance than mere physical disease. There can be no doubt that the imputation of insanity against a man employed in a position of trust and confidence, such as that of a bank teller, whether the insanity is temporary or not, although accompanied by the explanation that it was induced by overwork, is calculated to injure and prejudice him in that employment, and

especially where the statement is added that in consequence of his conduct in that condition the bank had been involved in trouble. The directors of a bank would naturally hesitate to employ a person as teller whose mind had once given away under stress of similar duties, and run the risk of a recurrence of the malady. The publication was we think defamatory in a legal sense, although it imputed no crime and subjected the plaintiff to no disgrace, reptoach or obloquy, for the reason that its tendency was to subject the plaintiff to temporal loss, and deprive him of those advantages and opportunities as a member of the community which are open to those who have both a sound mind and a sound body. The trial judge, therefore, erred in not ruling the question of libel as one of law. The evidence renders it clear that no actual injury to the plaintiff was intended by the defendants, but it is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives, and in an honest belief in its truth.

The judgment should be reversed and a new trial granted.

All concur.