Majority
p. 268Vanwyck, v. Guthrie, Aspinwall & Merrick. (Before Campbell, Bosworth and Hoffman, J.J.) January 25, March 3, 1855.
Headnote
The defendants, a committee of the Trustees of the College of Pharmacy, in the city of New York, made a report to the Board of Trustees, which the Board adopted, and ordered to he transmitted to the Secretary of the Treasury of the United States. The plaintiff was at that time Inspector of Drugs for the port of New York, and the report contained charges against him tending to show his ineompeteney for the office, and was transmitted with the view of effecting his removal.Held, that the report so transmitted was a privileged communication, and that the plaintiff would not be entitled to recover without proof of actual malice, or a want of good faith on the part of the defendants.
Held, that when the charges in a libel are specific, a general averment in the answer of their truth is sufficient.
Order overruling demurrer to answer affirmed, with costs.
This action came before tbe court on an appeal by tbe plaintiff from an order overruling separate demurrers, interposed to parts of tbe separate answers, of tbe defendants, Aspinwall & Merrick.
Tbe action is libel, and tbe complaint states tbat tbe plaintiff is a physician and doctor of medicine, wbo graduated and received bis diploma from tbe College of Physicians and Surgeons of tbe state of New York. In 1850 be was appointed by &e Secretary of tbe Treasury, a general inspector of drugs and medicines for tbe port of New York. He accepted tbe appointment, and entered on tbe discharge of its duties, abandoning a lucrative
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business, and while faithfully discharging such duties, and about the 8th of July, 1851, the defendants, without cause, and falsely, and maliciously, and with intent to injure his professional reputation, and to cause his removal from office, composed and published, at the College of Pharmacy, in the city of New York, the following false, scandalous, malicious, and defamatory statement, viz.:
<( 1st. Precipitate chalk, a so called article, is now on sale in this market, which, upon analysis, proves to be nothing else than sulphate of lime. It was imported by Mr. Poultney, some six months ago, was passed by the present Inspector of Drugs at this port, and is now offered for sale by the above-named gentleman, who affirms it to be the real precipitate chalk. He has sold it to several houses, one or two have returned it, but others seem to like it, and are now, no doubt, furnishing it to their customers for the genuine article.
“ 2d. Iodite of Potassium. One lot imported by Mr. Andrews, corner of Wall and Front streets; according to the evidence obtained, this was imported without the label of the maker’s name, and therefore, under the law, inadmissible. A certificate that it was, ‘ not only pure, but unusually fine,’ was given by the Inspector of Drugs; this certificate was forwarded to the Secretary of the Treasury, who thereupon ordered it to be passed. A sample has been obtained, which upon analysis, proves to be largely adulterated.
“ 3d. Another lot of the same chemical, without the maker’s name upon it, was imported by Mr. Patterson, and sent to Philadelphia, and returned. Whether this was passed by a similar certificate, your committee have not the means of knowing; neither have they any analysis, but the law was violated in its being passed through the custom house without the maker’s name being upon the bottles.
“ 4th. Bad Ipecac. — A sample of this root was shown to the members of a house in the presence of one of the committee, which was so badly damaged that they considered it utterly worthless. The inquiry was at once made as to the possibility of getting it through the custom house, to which the broker replied, ‘ Oh! there is not the smallest possible difficulty about
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that.’ This was offered at 56 cents per pound, while the article, if good, is worth $2.50 to $6, in quantity.
“5th. Red jalap in much the same condition has been passed by the inspector, and in one instance a lot of this root which was rejected by the parties importing it, and thrown upon the underwriters’ hands, we have reason to believe has passed the custom house, and been sold here.
“Many other facts of a similar character might be set forth, but the committee deem further specifications unnecessary, as the above shows a manifest reckless disrespect of law’s plainest provisions.”
That in consequence of this publication, the said Secretary was induced to believe that the plaintiff was ignorant of the analysis and manner of testing drugs, and allowed impure and adulterated drugs to be imported contrary to law, and, therefore, removed him from office, thereby subjecting him to great pecuniary loss, and injuring his good name and professional reputation, and prayed judgment for $16,000 damages, besides costs.
The separate answer of the defendant Aspinwall put at issue the material allegations of the complaint. It also contained the following matter, being the parts of it demurred to :
This defendant further says that, at the several times alleged in the complaint, he was a member of the College of Pharmacy in the city of New York, and of the Board of Trustees thereof, which college is, and was a body corporate, incorporated under and by virtue of a certain act of the Legislature of the people of the state of New York, entitled “ An act to incorporate the College of Pharmacy in the city of New York,” passed April 25, 1831; to which legislative act the defendant refers, as part of this answer.
That said college was, in and by said act, constituted a corporation for the purpose, among other things, of cultivating, improving and making known a knowledge of pharmacy, its collateral branches of science, and the best modes of preparing medicines and their compounds, with a view to the public benefit.
That some time in or about and before the month of April, 1851, sundry complaints were made to the Board of Trustees of said college, that sundry spurious and adulterated drugs and medicines had been imported into the port of New York, contrary
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to law and tbe provisions of tbe act of Congress, passed on the 26th of June, 1848, referred to in tbe complaint.
That thereupon said Board of Trustees appointed this defendant, together with- the defendants C. B. Guthrie and Thomas B. Merrick, to investigate such complaints, and to report the result of their investigations to said Board 9f Trustees.
That this defendant, together with the other defendants in this action, thereupon proceeded to make such investigations, and on or about the 8th day of April, 1851, jointly made a report thereof in writing to said Board of Trustees, in order that the same-might be presented to the Secretary of the Treasury of the United States, to whom the power to enforce said act of Congress, and the power to appoint and remove the General Examiner and Inspector of Drugs of the port of New York, belonged. A portion of which written report is correctly set forth in the complaint, beginning with the words, “ 1st, precipitate chalk,” and ending with the words “law’s plainest provisions.”
That as this defendant is informed and believes, said report was forwarded to the then Secretary of the Treasury of the United States, for the purpose of informing said Secretary of the matters therein stated, for the purpose of procuring the proper enforcement, by the government of-the United States, of the provisions of the act of Congress aforesaid, for the purpose of preventing the importation and sale of spurious and adulterated drugs and medicines, and without any unlawful, malicious, or evil purpose or intent towards the plaintiff, either on the part of this defendant or his co-defendants, to.the best of his knowledge, information, and belief.
That this defendant, and, as he is informed and believes, each of the other defendants, made the report aforesaid, and the same was so forwarded to the said Secretary, with reasonable cause, in good faith, and from good and lawful motives, and he and they were moved solely by a conscientious desire to discharge their duties to the public, to prevent the unlawful importation, sale, and public use of spurious and adulterated drugs and medicines, and without malice, or any unlawful attempt to defame or injure the plaintiff, or his profession, office, or employment. And this defendant, and, as he is informed and believes, the other defendants, never published the statements contained in said report, or
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any of tbem, excepting at tbe time and place and in the manner herein above expressly stated.
That this defendant, and, as he is informed and believes, the other defendants, at the time of making said report, and at the time the same was so forwarded to the said Secretary, verily believed and had good reason to believe and still believes the statements contained therein, and each and all of such statements to be entirely true; excepting only that since the month of April, 1851, the said plaintiff caused to be addressed to this defendant, by Messrs. Woodman & Black, his attorneys in this behalf, a letter informing this defendant that the portion of said report stating that the plaintiff had passed sulphate of lime for precipitate of chalk, was incorrect, and calling upon this defendant to make a written retraction of that statement. That thereupon, on further investigation, this defendant for the first time was led to believe that such portion of said report was incorrect, and accordingly, upon the understanding and agreement by and between him and the plaintiff, who acted in this behalf through his said attorneys, that if this defendant would retract such statement, he and his co-defendants should be relieved and discharged from all claims on the part of the plaintiff by reason of such incorrect statements, this defendant retracted in writing, the aforesaid incorrect portion of said report relating to precipitate chalk, which retraction, was, at the request of the plaintiff, contained in a letter addressed to Messrs. Woodman & Black, aforesaid, and in a letter addressed to the Secretary of the Treasury of the United States; and this defendant alleges that the plaintiff has, for a good consideration, fully acquitted and discharged this defendant from all alleged claims and demands whatsoever, accrued to'him the plaintiff, under or by reason of that paragraph of said report marked “ 1st,” and relating to “ precipitate ehalk,” and that there has been a full and sufficient accord and satisfaction between the plaintiff and this defendant therefor.
This defendant further answering, submits to this honorable court that the making of said report to the Board of Trustees of the said College of Pharmacy, and every part thereof, as also the forwarding of the same to the said Secretary," was a privileged and lawful communication, the same having been so made and forwarded with lawful motives, for a lawful purpose, and without
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any malicious or evil intent or purpose on tbe part of this defendant, or of his co-defendants.
This defendant further says, that he is informed and believes,' that each and all of the statements set forth in the said report, excepting only the first paragraph thereof, headed “ Precipitate Chalk,” so far as they relate to the plaintiff, are true, and that this defendant and his. co-defendants did not make said report without careful investigation, and upon such information as was sufficient to convince men of ordinary judgment that each and all of the parts thereof were true.
To these portions of the answer of defendant Aspinwall, the plaintiffs demurred.
The portions of the answer of defendant Merrick, to which the plaintiffs demurred, do not differ so materially from the corresponding parts of Aspinwall’s answer, as to render a minute statement of them important.
The demurrers were heard at Special Term, before Mr. Justice Campbell, who overruled them; and from the order entered on his decision, the plaintiff appealed to the General Term.
Black, for plaintiff, appellant,
cited Cook v. Sill, 3 Sandford, 850; Howard v. Thompson, 21 Wend. 319 ; O'JDonogue v. McGovern, 22 Wend. 26 ; Fry v. Bennett, 5 Sand. 68.
De Forest and Emerson, for defendants,
cited ^orn v. Blanchard, 5 John. 508 ; White v. Nichols, 3 How. J^- R. 269; Rex v. Bailli, 2 Esp. N. P. R. 91; Fairman v. Ives, 5 B. & Aid. 642.
By the Court.
The defendants, as a committee of the Trustees of the College of Pharmacy, in the city of New York, made a report which was adopted by the Board, and ordered to be transmitted to the Secretary of the Treasury-of the United States. The plaintiff had been appointed Inspector of Drugs for the port of New York, and the report contained charges tending to show his incompetency for the office which he held, and indeed the report was made and ordered to be sent to the Secretary of the Treasury with the view of effecting the removal of the plaintiff from his office.
In the complaint certain portions of this report are set forth in
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tbe words of tbe report itself, and tbe plaintiff charges that they are libellous.
Tbe defendants answer and set up tbe facts stated, that tbe report was made by them on behalf of tbe College of Pharmacy, and that it was transmitted to the Secretary believing it to be true, and after careful inquiry, and that it was a privileged communication, and they aver in conclusion that tbe statements contained in tbe report are true.
To these answers the plaintiff has demurred.
The facts pleaded show a privileged communication, that is, a communication privileged, if it was made in good faith, without malice, and with probable cause as to the truth of the statements. That the report of the defendants was made to the Board of Trustees, and by them ordered to be sent to the Secretary, does not constitute an unauthorized, nor gratuitous, nor unnecessary publication, which would take away the privilege. The defendants were a Committee of Trustees, and they make the report to their own body, by whom it was contemplated to make the transmission to the Secretary of the Treasury. It is within the principle established in this state, in Branderzee v. McGregor, 12 Wendell, 545, where it was held that the privilege was not lost by the publication of a¡ petition which others read who did not sign it. I cannot doubt but this is a privileged communication, and that the plaintiff can recover only by showing malice and want of probable cause.
But there is another serious objection to the demurrer. The answers allege that the statements in the report are true. If true, the defence is of course perfect. But the plaintiff supposes that a general, averment of their truth is not sufficient. I think he has mistaken the rule in Fry v. Bennett. It is simply this, that where the defamatory charge is made in general terms, it is not sufficient to set up in the answer that such charge is true.
The justification must be made in such cases by a specification of the facts which are relied on to establish its truth. But even in such a case, where the charge is general, and the answer alleged that the charge is true, I am inclined to the opinion the defect should be cured, not by demurrer, but by an application to compel the defendant to make his answer more definite and certain.
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In tbe present case, tbe report complained of, and wbicb is set forth in tbe complaint is, in the main, made up of specific charges tending to show tbe plaintiff’s incompetency for tbe position be occupied, and a general averment that tbe statements in tbe report were true would perhaps be all that was necessary. There may be an exception of one or two items in tbe charge, wbicb are uncertain, and should be made more definite.
We are of opinion, upon tbe whole case, that there is no ground upon wbicb tbe demurrers can be sustained. Tbe orders appealed from are therefore affirmed, with costs.
Cases cited
- Howard v. Thompson 21 Wend. 319 p. 273