Cruikshank v. Gorden ( 1888 )

Barnard, P. J.

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 utterances 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. Wash, 3 N. Y. 177. Humero us 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 the 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 wit-mess for the plaintiff testified to one of the slanderous utterances, and in a conversation with the defendant, after the papers in the action were served, in respect to the action, testified that defendant offered him $1,000 to go to Can.ada to avoid testifying on this 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 where an offer to suppress a witness is inadmissible. 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. Ho 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.