Musso v. Miller , 38 N.Y.S.2d 51 ( 1942 )

Hill, P. J.

The appeal is from a judgment dismissing the complaint on the merits with costs following a verdict of no cause of action. The court submitted the case to the jury as one for slander, saying in his charge, “This case, therefore, sifts down to one matter which you are to decide and that is the statement the plaintiff alleges the defendant made with respect to him, namely, that ‘ he was unfit to be a minister. ’ ’ ’

The appellant, a Methodist minister, had been appointed Pastor of the St. Titus Bilingual Mission, Troy, N. Y. Respondent was District Superintendent, appointed by the Methodist Church authorities, for the Troy District with certain powers in connection with the conduct and administration of the Mission. The complaint charges that respondent was opposed to the appointment of appellant as Pastor of the Mission, and thereafter sought his “downfall and removal” by wrongful, malicious and unlawful acts designed “to bring about the disgrace, contempt and ruin of the plaintiff. ’ ’ These acts enumerated and described in ten numbered paragraphs of the complaint included: the inciting of members of the Mission to join a ‘ ‘ rebellious group in flouting the pastoral authority of the plaintiff;” the convening of the Quarterly Conference of the Mission for the “sole purpose of airing- accusations .against the plaintiff, and having him censured, although the defendant well knew * * * that * * * said Quarterly Conference had no authority to hear * * * charges against its Pastor;” summoning “ the plaintiff to appear before the Triers of Appeal [over which respondent presided], well knowing * * * that the consequences thereof would be to cause a suspicion of immorality ” against appellant and make it difficult or impossible for him “ to earn a livelihood in the practice of his profession as a minister; ” maliciously denying appellant rights and privileges guaranteed by the church discipline to an accused on such a hearing; presiding in an unlawful, arbitrary and malicious manner, stigmatizing appellant as one unfit to be a minister or pastor; the cutting off of funds to .support the Mission and pay appellant’s salary and finally maliciously accomplishing his retirement as a pastor by the annual conference. Evidence was received as to all or most of these items, but the court limited its consideration to the question whether the respondent was actuated by malice when he said that appellant was unfit to be a minister, saying in his charge, “ Now, I have only stated a part of the evidence but in substance covered the conferences and so forth from which you are to judge whether there was any malice.”

The alleged slander is but one of many damaging and malicious acts named in the complaint for which appellant asks redress. The forced retirement of appellant from the ministry is the culmination of the chain of events for which damage is sought.

An action will lie for malicious acts and words where they are calculated to produce and where they do produce damage. “ Such an action is not one of libel or of slander, but an action on the case for damage willfully and intentionally done.” (Al Raschid v. News Syndicate Co., 265 N. Y. 1.) “A man has a right to give advice, but advice given for the sole purpose of injuring another’s business and effective on a large scale, might create" a cause of action.” (American Bank & Trust Co. v. Federal Bank, 256 U. S. 350, 358.) Words not slanderous, as well as lawful acts, if intended solely to injure a man in his business are actionable. (Busted v. Busted Co., 193 App. Div. 493.) “ The genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another.” (Beardsley v. Kilmer, 236 N. Y. 80, 90.) Williamson v. Columbia Gas & Elec. Corp. (110 Fed. Rep. [2d] 15; writ denied, 310 U. S. 639), was brought to recover damages for the unlawful purchase of stock of a utility corporation by a competitor with the alleged purpose to lessen competition. It was decided that action on the case was a proper remedy, being founded on the common law and available to recover damages for torts not committed by force, actual or implied. The opinion quoting from 3 Blackstone Com., 122 says: “This action of trespass, or transgression on the case, is a universal remedy, given for all personal wrongs and injuries without force * * *99

We have not considered the weight of evidence, and have only examined the facts to learn if upon a new trial there will be proof upon the theory above outlined and which is presented by the pleadings.

Respondent’s request to charge was granted in connection with the following facts: it appeared that the District Attorney of the county had taught a class in the Mission but that he was not called as a witness by appellant. The court charged upon request that the failure by appellant to call him sustained the inference that his evidence, had he been called, would have been unfavorable to appellant. This was harmful error. (Hayden v. N. Y. Railways Co., 233 N. Y. 34.)

The judgment and order should be reversed on the law with costs to abide the event and a new trial granted.