Landry v. Bardt ( 1958 )

D. Ormonde Ritchie, J.

The defendants make this motion for an order pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice dismissing the complaint herein upon the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges publication by defendants of libelous statements concerning plaintiff. One of the statements is alleged to have been published in the following words:Landry Report a Farce! ! ! ” “ By Dr. Landry’s own admission his report is — Misleading, Incomplete, Inaccurate.” “ A report which has proved to be a farce, since the chapter on which the recommended expansion was based was not included through what Dr. Landry calls an ‘unfortunate clerical error.’ The chapters which were included are incorrect and according to Dr. Landry, have nothing to do with suggested expansion.” The complaint does not allege special damage and it is the contention of defendants that the statements attributed to them are not libelous per se, and, since they are not in that category, absence of a sufficient allegation of special damages renders the complaint insufficient. If defendants’ contention that the words published are not libelous per se is correct the complaint must be held insufficient by'reason of its lack of pleading special damage. But here the words published charge plaintiff with incompetence in the practice of his profession, and, if false, of necessity tends to injure him therein.' Where the libelous publication is actionable per se special damage is not required to be alleged as a requisite to the sufficiency of the cause of action.

The motion is denied.