Marino v. Di Marco

Mr. Justice Robb delivered the opinion of the Court: It is elementary in the law of libel and slander, that “defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade,” are actionable per se. Pollard v. Lyon, 91 U. S. 225, 23 L. ed. 308. This form of action is allowed by the law for the protection of every man who follows an honest profession, business, or calling from false accusation, the natural tendency of which is to prejudice him in such profession, business, or calling. When, therefore, words are spoken which convey an imputation upon one in the way of his profession, business, or calling, or, as it is sometimes stated, which touch him therein, recovery may be had without allegation or proof of special damage. Thus in Morasse v. Brochu, 151 Mass. 567, 8 L.R.A. 524, 21 Am. St. Rep. 474, 25 N. E. 74, it was held that false words uttered with intent to injure a physician in the practice of his profession are actionable per se when, as a natural or probable result, injury will follow there [78] from. In Lovejoy v. Whitcomb, 174 Mass. 586, 588, 55 N. E. 322, the court said: “The jury were correctly instructed that a false and disparaging statement concerning one in his trade, occupation, or calling is actionable in itself; and the person concerning whom such a statement is made, although he should' not be able to show that he had suffered damage or loss, would still be entitled to recover.” In Moore v. Francis, 121 N. Y. 199, 8 L.R.A. 214, 18 Am. St. Rep. 810, 23 N. E. 1127, it was held that words imputing insanity are actionable per se when written or spoken of one occupying a position of trust and confidence in relation to his occupation, but not otherwise without proof of special damage. In Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266, the words declared upon were naturally calculated to convey the idea that the plaintiff, who was a butcher, was selling diseased meat for human food. It was held that the words were actionable per se. The court said: “The slander charged is of one engaged in business or trade, and is alleged to have been spoken of the appellee and his business, and the words used, if used as charged, on their face, were calculated to injure his business,, and were therefore actionable per se.” In Gross Coat Co. v. Rose, 126 Wis. 24, 2 L.R.A.(N.S.) 741, 110 Am. St. Rep. 894, 105 N. W. 225, 5 Ann. Cas. 894, the plaintiff was engaged in the business of selling coal, and the letter declared upon charged in substance that, at a time when there was a coal famine and people were suffering for fuel, this company not only charged extortionate prices for its coal, but actually refused to sell coal, even at those prices, to people suffering from sickness. In sustaining the judgment the court said: “Such a charge is libelous, because imputing mean and abhorrent conduct to the plaintiff in the management of its business, and thus tending necessarily to injure it in such business. * * * Words spoken of a person in direct reference to his business or trade, which charge him with incapacity, fraud, trickery, dishonorable and mean conduct in the transaction of his business, thereby necessarily tending tp injure him in such business, are actionable without proof of special damage.” See also Darling v. Clement, 69 Vt. 292, 37 Atl. [79] 779; Jones v. Greeley, 25 Fla. 629, 6 So. 448; Daily v. De Young, 127 Fed. 491; Sternberg Mfg. Co. v. Miller; Du B. & P. Mfg. Co. 95 C. C. A. 494, 170 Fed. 298, 18 Ann. Cas. 69; 25 Cyc. 326. The plaintiff, at the time of the alleged slander, admittedly was engaged in the business of selling fruit and other edibles. The measure of his success in conducting this business was necessarily largely dependent upon the confidence of the public in the manner in which he conducted that business. It is apparent that, as between a dealer who is known to sell wholesome food and one who sometimes does not, the discriminating public will patronize the former. Moreover, under the food and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915, IT. S. Comp. Stat. Supp. 1911, p. 1354), the selling of food consisting in whole or in part of filthy, decomposed, or putrid animal or vegetable substance is made a misdemeanor. This the defendant is presumed to have known when he uttered the words forming' the basis of this action. He had reason to believe, therefore, that the words used would be understood by the public to mean that the plaintiff had violated the law in the conduct of his business. We must now presume that the jury found, under proper instructions from the court, that the defendant, with a deliberate purpose and intent to injure plaintiff in his business, used these words. Can it reasonably be said that their natural meaning, the sense in which they were understood and were intended to be understood by the general public (and it is that sense which courts of justice ought to ascribe to them, —Rue v. Mitchell, 2 Dall. 58, 1 L. ed. 288, 1 Am. Dec. 258), was not harmful to the plaintiff in his business? It was not merely charged that some of the plaintiff’s goods were rotten. The defendant went further and charged that the plaintiff sold rotten goods. The distinction is important. The words used involved both plaintiff and his goods, that is, both the person and the thing, and in a way reasonably calculated to cause injury to the business which the words embraced. It is suggested on behalf of the defendant that there is no [80] rule of law or principle of business ethics which makes damaged goods, as such, unmarketable. Conceding this to be true, the insidious character of the words declared upon is not overcome. The charge was not that the plaintiff sold damaged goods, but that he sold rotten goods. He not only was charged, therefore, with violating the law, but the average person would understand that he -was also accused of perpetrating a fraud upon the public. It must be remembered, as previously suggested, that these words were uttered concerning the sale of food for human consumption, where necessarily such an accusation would have much greater effect than if made concerning the sale of food for cattle. Then, too, the average person would be much less likely to patronize a dealer who knowingly would violate the law in the sale of unwholesome food, for it would naturally be inferred that a violator of the law would be less conscientious in his business dealings. Sternberg Mfg. Co. v. Miller, Du B. & P. Mfg. Co. 95 C. C. A. 494, 170 Fed. 298, 18 Ann. Cas. 69. Judgment affirmed, with costs. Affirmed-.