In Purdy v. Rochester Printing Co. (supra) it was held that a publication concerning the plaintiff's official acts as coroner were not libelous as constituting a charge against him in his profession as a physician, although without doubt it would affect him in his profession.Summary of this case from Lynott v. Pearson
Argued June 13, 1884
Decided June 24, 1884
John Van Voorhis for appellant. Peter H. Van Auken for respondent.
The learned counsel for the plaintiff conceded, upon the argument, that no paragraph, phrase or particular portion of the article could be pointed to as libelous, and we are unable to find in the words used or the general scope of the publication any slanderous or defamatory meaning, nor do we perceive that it is susceptible of any construction which would make the words actionable. It appears from the complaint and evidence that the plaintiff was by profession a physician and by office a coroner. In the article complained of he is referred to in the latter capacity only, and nowhere can be found a word or suggestion from which the most astute inquirer could infer that he had any other than that public occupation. As the language used did not relate to his profession in any way, so as to his office of coroner, it exhibits on his part a prompt and efficient performance of its duties, and it is impossible to see how any person reading it could ascribe to the words used a defamatory meaning, or without the innuendo, apply them to the plaintiff in his professional capacity, and there is no evidence that such application was intended.
The case of Sanderson v. Caldwell ( 45 N.Y. 398) is cited by the respondent, but it is not any authority against this view. There the plaintiff was not only, in fact, a lawyer engaged in the practice of his profession, but the libel spoke of him as collecting claims of soldiers and sailors against the government — a professional act — and it was thought to be a just inference that the injurious words used by the defendant related to him in that character. Here it is quite otherwise. There is nothing to show that the words were so spoken of the plaintiff. They do not charge him with doing any act whatever as a physician, nor were they spoken of him in his business as such.
In Oakley v. Farrington (1 Johns. Cas. 130) the plaintiff was a justice of the peace, and sued the defendant because the latter called him a "damned rogue." In Van Tassel v. Capron (1 Denio, 250) the plaintiff was a magistrate also, and sued because the defendant had charged him as one who had combined with others to cheat strangers. In the first the plaintiff was nonsuited, and in the last a demurrer to the complaint was sustained for the reason that the words did not touch the plaintiff in his office.
So in the case before us. The plaintiff was not spoken of as a physician; he was not described as acting as such on the occasion in question, and if we assume, with the plaintiff's counsel — as I cannot, in fact, concede — that the language of the defendant could in any connection be deemed actionable, it is not so here.
It follows that the case was properly disposed of at the Circuit. The appeal, therefore, was well taken, and the order of the General Term should be reversed, and the defendant have judgment upon the verdict.
Order reversed, and judgment accordingly.