Mattice v. Wilcox

• Decision Date: 10 December 1895
• Citation: 42 N.E. 270,147 N.Y. 624
• Parties: MATTICE v. WILCOX.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 624

42 N.E. 270

MATTICE

v.WILCOX.

Court of Appeals of New York.

Dec. 10, 1895.

Appeal from supreme court, general term, Fourth department.

Action by Burr Mattice against Henry Wilcox for damages for libel. From a judgment of the general term (24 N. Y. Supp. 1060) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for an alleged libel published by the defendant of and concerning the plaintiff. The publication was made by the defendant in the form of a circular which he procured to be printed, and which he caused to be circulated among the citizens of Oneonta just prior to a charter election for trustees of the village. The plaintiff was an assessor of the village, and, being an attorney at law, had been frequently employed by the village authorities to attend to its law business, and to defend suits brought against it to recover damages by reason of the alleged negligence of the village agents in caring for the streets. Judgments had been obtained against the village in some such suits. The following is the circular. Paragraphs 2 and 8 are the only ones which concern the plaintiff:

‘How to Make Business Good in Oneonta, N. Y.

‘No. 1.

‘Oneonta, N. Y., February 1, 1890.

‘1st. Bond the town for $11,000 to build a bridge over the river.

‘2d. Make Burr Mattice attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village.

‘3d. Vote $4,000 every year for 31 electric lights.

‘4th. Pay the water company $30 each for 100 or more hydrants, for each and every year.

‘5th. Bond the village every year for $20,000.

‘6th. Vote to bond and pave.

‘,7th. Have the trustees levy the full two per cent., because the law allows it.

‘8th. Elect Burr Mattice and Henry Potter assessors to put up the valuation, so that the trustees can rob the taxpayers on the two per cent. levy.

‘9th. To please the trustees, vote all the special taxes you can over and above the two per cent. that the charter permits.

‘10th. Mortgage the village with six fool trustees to throw away moneys extorted from the taxpayers.

‘11th. If any man has the manhood and courage to expose the weakness or rascality of the trustees, or any one in office, screen, conceal, cover up, divert the attention of the people from the wrongdoers, have him called a crank, a chronic growler, and ‘ought to be despised by every man, woman, and child in the village.’

‘And, by the way, what Oneonta needs most at the present time is one able, honest, independent newspaper, that will defend the poor mortgaged taxpayers of this village.

‘Henry Wilcox.’

A verdict for plaintiff having been affirmed at the general term, the defendant has appealed here, and his counsel now argues several propositions of law which it is claimed should be decided in defendant's favor, and which should secure a reversal of the judgment against him. Several of them are referred to in the following opinion.

Isaac H. Maynard, for appellant.

Alfred C. Tennant and Douglas W. Miller, for respondent.

PECKHAM, J.

1. In our judgment, the trial court made no mistake in charging the jury that the words of the second paragraph upon their face were actionable, and that the only question for them to determine upon that branch was one of damages. The learned judge said there was no ambiguity about the language; that the meaning which everybody reading it would draw from it was the incompetency and incapacity of the plaintiff as an attorney to perform the duties of the attorney to the village, and that it attacked the plaintiff in his professional capacity; and nothing remained for the jury but to assess the damages. The counsel for the defendant argues that this was error, for the reason that the language is, at least, capable of two different meanings, one of which is not actionable; and the question should have been left to the jury, to say in which sense the language was used by the defendant. He says that it was a question for the jury whether the defendant intended to or did charge a lack of professional skill or ability generally, or only a lack of it in the particular case or cases referred to. The language used by the court in Foot v. Brown, 8 Johns. 63, is cited, to the effect that the law only gives an action for words that affect a man's credit in his profession as charging him generally in his profession with ignorance or want of skill, or a want of integrity, either in general or in particular. To the same effect are cited the cases of Lynde v. Johnson, 39 Hun, 16, and Cruikshank v. Gorden, 118 N. Y. 178, 23 N. E. 457. The last two cases were those relating to surgeons in respect to particular cases treared by them. The case in Hun was held proper to be submitted to the jury for its decision as to the meaning of the language used, whether it meant to charge ignorance in general, or merely a want of that proper care and skill in ascertaining the remedy required in the particular case. The Cruikshank Case was one where it was held that the language used did impute general ignorance of medical science, and so was actionable per se. Other cases to like effect were cited by counsel in his exhaustive brief in this case. The complaint herein alleges no special damage, and none was proven. If the words used are capable of the construction contended for by counsel for the defendant, then he says that, as no allegation was made, and no proof given, of any special damage, the question as to the sense to be given to the language was for the jury.

The cases above mentioned and the others cited by the counsel do not, as we think, cover this case. The language used by the court must be looked at with reference to the facts of the case wherein it is employed. Thus, in the case of Foot v. Brown, supra, an action of ejectment had been brought by the plaintiff, an attorney, for his client, and the words used by the defendant only charged plaintiff with negligence or want of skill in the particular ejectment suit mentioned, and such a charge was held to necessitate an allegation and proof of special damage to render it actionable. The court said there was not a case in the books where an action had been held to lie for charging a professional man with ignorance in a particular case. Continuing, the learned court said that ‘there is no physician, however eminent, who is not liable to mistake the symptoms of a particular disease, nor any attorney who may not misunderstand the complicated nature and legal consequences of a particular litigation.’ Would it not, however, be actionable per se to say of a physician to a ‘lying-in hospital’ that he was ignorant of the first principles of obstetrical practice? Or of a medical superintendent in an insane hospital that he was entirely incapable of properly treating a case of insanity? Or of a lawyer devoting himself to cases involving the law of patents that he was an ignoramus so far as the law of patents was concerned? True, the doctor or the lawyer might be capable in other branches of the profession, and the words suggested do not refer to his general incompetency as a physician or lawyer in all of those branches, and yet it would seem as if there could be no fair doubt that such words would be actionable per se. They refer to general incapacity or ignorance in that particular branch or sphere of professional labor chosen by such doctor or lawyer. The plaintiff in this case had been frequently counsel for the village of Oneonta. In such an employment it would almost necessarily (as in fact it did) happen that, among others, cases of negligence would arise, and it would be the duty of the counsel employed by the village to defend such suits. A general incapacity to properly perform the duties of defending that class of cases seems to be, under such circumstances, equivalent to a general incapacity to properly discharge the duties of his profession. Those duties are, in these circumstances, to try such cases, and he assumes a responsibility, in taking such a general class of employment, to discharge such duties with ordinary care and capacity. A charge which accuses him of incapacity to perform the ordinary duties appertaining to the practice of his profession in such cases is of so general a nature as to come within the reason, if not the very letter, of the rule as to general incapacity. It is not incapacity as to a single case or a single litigation. It is incapacity as to a general class of actions in regard to which he has assumed knowledge and capacity to a reasonable extent by taking such cases as a class, and defending them as part of his professional duties. The words actually used in the so-called ‘second paragraph’ of this circular amount at the least to a charge of general incapacity to defend negligence cases, and it is that very class, among others, that the plaintiff had held himself out as capable of defending when accepting the employment of the village to act as its attorney or counsel in cases of this character, and in defending such cases. The language used in this paragraph is of a character to make the inference a necessary one that actions against the village, having no real merit on the part of the plaintiffs, would end in large verdicts in their favor, resulting either from incapacity on the part of the counsel for the village or else from a lack of integrity in making the defense. The trial court did not submit to the jury to find the latter possible construction, but simply said that the language necessarily implied lack of capacity. The defendant has no right of complaint if the more serious construction were not submitted to the jury, and it was confined to the less serious one. In Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, it is said that words that affect a man in his trade or occupation, and which tend to prejudice him therein, are actionable. To confine an accusation of incapacity to a...