Fitzgerald v. Redfield

By the Court, James C. Smith, J. The plaintiff is a mason by trade and occupation, and carries on his trade as a means of livelihood. The defendant, at various times, uttered words charging the plaintiff with gross want of skill, knowledge and capacity in his craft, and, among other things, said of him, “that he was no mechanic; that he could not make a good wall, or do a good job of plastering; that he was no workman; and that he was a botch.” The only question is whether the words proved, having been publicly spoken of and concerning the plaintiff, and of his trade, are actionable per se. It is claimed by the counsel for the appellant that they are not actionable, as they involve no charge of moral turpitude or of misconduct on the part of the plaintiff in his trade or occupation, and therefore do not in any manner affect his character. But in actions founded on this species of defamation, the question is not whether the plaintiff has suffered in his general reputation; it is whether he has been prejudiced in his employment. It is said by a learned author that if the injurious words clearly relate to the plaintiff, and his [492] occupation, they are actionable, whether they affect his integrity, his knowledge, skill or diligence, his credit or the subject matter in which he deals. (Starkie on Slander, 130.) It is contended, however, by the appellant’s counsel that the rule above stated extends only to words spoken of men in their office or profession, and does not apply where the employment is of a mere mechanical nature. But that is not the law. The only distinction between the ' learned professions and mere mechanical occupations in respect to the nature of the words necessary to maintain the action, is stated by the same author, thus: “ Where the office, profession or employment of the plaintiff, requires great talent and high mental attainments, general words, imputing want of ability, are actionable, without express reference to his particular character, for they necessarily include an ability to discharge the duties of such a situation; but where the employment is of a mere mechanical nature, the words, to be actionable, must be applied to it clearly and unequivocally.’’ (P. 136.) The author refers to several cases illustrating each branch of the rule. Thus, on the one hand, it has been held, that to say of a barrister, generally, that he is a “dunce,” is actionable, the word dunce being commonly taken to mean a person of dull capacity, who is not fit to be a lawyer. (Peard v. Johnes, Cro. Car. 382.) So, to say of a physician that he is “no scholar,” is actionable, a learned education being considered to be an essential qualification in the medical profession. (6 Bacon’s Abr. 215.) On the other hand, it has been held that it is actionable to say of an apothecary, “ It is a world of blood he has to answer for in this town; through his ignorance he did kill a woman and two children at Southampton;” and to say of a midwife, “ Many have perished for her want of skill;” these words being spoken with reference to the particular occupation of the plaintiff, and clearly imputing a want of knowledge, skill or diligence in its exercise. [493] [Monroe General Term, June 1, 1868. E. D. Smith, Johnson and J. C. Smith, Justices.] In the case of Redmond v. Pyne, (1 Mod. 19,) the words spoken of a watchmaker were, “He is a bungler, and knows not how to make a good piece of work.” After verdict for the plaintiff, the words, on motion in arrest of judgment, were held by the court not to be actionable, not having been laid to.be of the plaintiff’s trade; but it was said that had the words been, “ he knows not how to make a good watch,” they would have been actionable. Hpon authority, therefore, words imputing tó a mechanic want of skill, or knowledge in his craft, are actionable per se, if they are clearly shown to have been spoken with reference to the plaintiff’s occupation, and the employment is one requiring peculiar knowledge and skill. In this respect the authorities recognize no distinction between a learned profession and a mechanical trade, and manifestly, there is none in principle. In the present case, not only did the words themselves distinctly refer to the plaintiff’s trade, but the referee has found the fact that they were spoken of and concerning the plaintiff, and of his occupation as a mason. The judgment should be affirmed. Judgment affirmed.