
    John C. Hinrichs, Respondent, v. Thomas W. Butts, Appellant.
    Second Department,
    February 23, 1912.
    Libel and slander — words charging incompetency in business, when libelous per se — privileged communication — pleading.
    It is libelous per se to publish a letter calling the local manager of a mail chute company a “venomous incompetent creature * * * who either does not know how to put it (the chute) in order or wilfully queers it so that it will not serve the purpose for which it is wanted,” and stating further that he should not be given another chance to ‘‘ bedevil us and the job.”
    Willful words which hold a person up to hatred, ridicule, contempt or obloquy are libelous per se.
    
    Words written of one in relation to his business or occupation winch have a tendency to hurt or prejudice him therein are actionable although they charge no fraud or dishonesty and were written without actual malice.
    
      One engaged in a mercantile business has as much right to recover for such libel as if he belonged to a learned profession.
    Plaintiff suing for libel need not allege that the article was not privileged, the defense of privilege resting upon the defendant.
    Appeal "by the defendant, Thomas W. Butts, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of December, 1911, denying the defendant’s motion for judgment on the pleadings.
    
      P. J. Dobson [Walter P. Vining with him on the brief], for the appellant.
    
      Louis Ehrenberg, for the respondent.
   Woodward, J.:

The defendant moved at Special Term for judgment dismissing the plaintiff’s complaint, contending that although the plaintiff seeks to recover for an alleged libel, the complaint fails to state a cause of action.

It appears that the plaintiff was in the employ of the United States Mail Chute Equipment Company, and the manager of its New York office. The alleged libelous words are contained in a letter written "by the defendant to the equipment company. In that letter the defendant refers to the plaintiff as “ the venomous incompetent creature who has charge of your office here and who either does not know how to put it in order [meaning a certain mail chute] or wilfully queers it so that it will not serve the purpose for which it is wanted,” and further saying in substance that the equipment company was giving “your New York Manager another chance to bedevil us and the job.”

It is urged by the defendant that the words are not libelous per se; that there is no sufficient allegation of any trade, profession or occupation, and that, in the absence of an allegation of any specific damage, the plaintiff is not entitled to recover, and, therefore, the defendant was entitled to a dismissal of the complaint.

If we analyze the words used we are of the opinion that they touch the plaintiff in his private character, in that they charge him with being “venomous,” with an intention to “wilfully queer” his work, and “ bedevil ” the job. To characterize a person as possessing those qualities charges such moral delinquency as necessarily affects him in his personal character, and in our opinion is libelous per se. To charge him with being “ incompetent ” tends to injure him in relation to his business and occupation. In the case under consideration the letter in question tends to injure the plaintiff in his private character as well as his standing in his business and occupation.

It goes without saying that willful words which hold a person up to hatred, ridicule, contempt or obliquy, are libelous per se. The words of the letter do nothing less.

So, too, words written of a man in relation to his business or occupation which have a tendency to hurt, or are calculated to prejudice him therein, are actionable, although they charge no fraud or dishonesty, and were without actual malice, and, when proved, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover. (Moore v. Francis, 121 N. Y. 199; Krug v. Pitass, 162 id. 154, 159; Bornmann v. Star Co., 174 id. 212, 219; Triggs v. Sun Printing & Pub. Assn., 179 id. 144, 153; Le Massena v. Storm, 62 App. Div. 150, 153; Gibson v. Sun Printing & Pub. Assn., 71 id. 566, 569; Cruikshank v. Gordon, 118 N. Y. 178, 183.) We think these authorities dispose of the defendant’s contention, and the court was correct in denying the defendant’s motion for judgment.

In our judgment it would be absurd to hold, as contended by appellant, that because the plaintiff did not practice a profession or follow a trade, he was not equally protected from unjust attack. He was apparently the local manager of a large and important business enterprise. His good name and reputation as the business manager of such a concern is just as sacred as though he were prominent in one of the learned professions. The law should be just as zealous to protect the reputation of a business man as one of capacity and ability, as one engaged in following a trade or practicing a profession.

The appellant further contends that the letter containing the words complained of is a privileged communication. Assuming such to be the fact, such privilege rests with the defendant to establish as a defense, and it is not for the plaintiff in the first instance to show that the article is not of the privileged class. Communications otherwise privileged cease to be privileged when actuated by malice and made in bad faith. The letter in question is so intemperate in language that a jury might well infer the writer was actuated by feelings of personal malice toward the plaintiff.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.  