
    Burr Mattice, Resp’t, v. Henry Wilcox, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 10, 1895.)
    
    1. Libel—Attobney at law.
    . A charge in a publication which accuses an attorney at law of incapacity to perform the ordinary duties appertaining to the practice of his profession in a certain class of actions in regard to which he has assumed knowledge and capacity to reasonable extent by taking such cases as a class and defending them as part of his professional duties, is equivalent to a charge of general incapacity in his prof ession and is actionable as libelous per se, without allegation of proofs of special damage. '.
    
      2. Same—Innuendo—Different meanings.
    ■ Where the words actually used are in all possible senses actionable per se,
    
    though capable oí different constructions, some of which are graver in their nature than others, an innuendo may he made use of which charges the graver meaning, and then whether the language is so used as understood will he a question for the jury.
    3. Same.
    But, in such case, it is not error of which the defendant can complain if the court charges the jury that the language has the milder meaning only and does not include the graver meanings, instead of submitting to the jury all the meanings charged by the innuendo.
    4. Same—Mitigation.
    Mitigating circumstances are those which, while not proving the truth of the charge, do yet tend in some appreciable degree toward such proof and thus permit of an inference that defendant was not actuated by malice in his charge ; but they must be of such a nature as to show that defendant, though mistaken, believed the charge to he true when it was made.
    5. Same—Privileged communication.
    Tiie fact that defendant did not devote his whole publication to charges against the plaintiff and that the balance of it was upon general village subjects to which he was justified in referring, does not render the whole publication proper, nor is the whole publication thereby made a fact to be taken into consideration as a mitigating circumstance in estimating the eharacter of the charges against the plaintiff.
    6. Same.
    In such action, a charge that, as a result of the words being undefended and unmitigated, the jury must give some damage on account of it, and the amount thereof rested in their good sense and discretion, is correct.
    7. Same.
    If the court holds a communication privileged, then the question of good faith in its publication,-—of actual malice as distinguished from that which is presumed from a defamatory publication, and also belief in the truth of the statement, are all matters for the consideration of the jury.
    8. Same—Malice.
    Privileged communications are the exception to the general rule as to malice, and Jtlie burden rests with the plaintiff to show that the communication in question is within the exception.
    - 9. Same.
    Though a person has a right at.all times to communicate publicly by speech, or in writing, with the citizens of a municipality regarding the general condition of municipal affairs, such occasion does not excuse him in making a personal and defamatory charge against the character of another, nor is such a charge privileged.
    10. Same—Meaning—Submission.
    In an action for libel, the submission to the jury of the question whether the alleged libelous language does not have a meaning, of which it is capable, and which is not strained or unnatural and which if found is declared by the court to he actionable, is not rendered erroneous by the fact that the language is susceptible also of an innocent meaning where such innocent meaning is presented to the jury to find under an instruction that if they found such to be the real meaning of the article, it was not actionable and the plaintiff was not entitled to any damage by reason of its publication.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying defendant’s motion for a new trial.
    
      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 two and eight 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. Yote $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. Yote to bond and pave.
    “7th. Have the trustees levy the full two per cent, because the latu allows it.
    
    “8th. Elect Burr Mattice and Henry Potter assessors to put up the valuation so .that the trustees can rob the taxpapers on the two per cent. levy.
    “9. To please the trustees, vote all the special taxes you can over and above the two per cent that the charter permits.
    “10. 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, and 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 app’lt;
    
      Alfred C. Tennant and Douglass W. Miller, for resp’t.
    
      
      Aff’g'54 St. Rep. 902.
    
   Peckham, J.

First 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 judgment said/jthere 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 of 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 tó 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, ora want of integrity, either in the general or in particular. To the same effect are cited the cases of Lynde v. Johnson, 39 Hun, 16; and Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep. 784. The last two cases were those relating to surgeons in respect to particular cases treated 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 with a want of that proper care and skill in ascertaining the remedy required in the particular case. The Gruikshank 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 was no physician, however eminent, who is not liable to mistake-the symptons of a particular disease or any attorney who may not misunderstand the complicated nature and legal consequences of a particular litigation.’’ Would it npt, however, be actionale per se to say of a physician to a “lying 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 lo> 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 a 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 action against the village-having no real merit on the part of the plaintiffs would’ end in-, larger 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; 30 St. Rep. 467, 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 particular case, the courts hold, does not tend to prejudice a man in his profession without proof of special damage, but it surely must tend to so prejudice him in a case where "the accusation is want of capacity to defend a class of cases which the attorney is in the habit of attempting to defend, of holding himself out as capable bf defending, and where he has accepted employment from a client, many of those cases are of that description.

It is also alleged that the plaintiff, in his complaint, set forth the meaning of the language in the second paragraph by means of an innuendo, which alleged that the defendant meant to charge the plaintiff with incapacity, corruption, dishonesty and malpractice-in his profession. The defendant claims that the plaintiff must be held to proof óf the correctness of that charge, and whether it. was or was not proved was a question for the jury, and that the jury should not have been permitted to find for the plaintiff upon a naked finding of incapacity, without the further finding that the language was intended to and did include a charge of dishonesty. If the words actually used were in all possible senses actionable per se, although capable of different constructions, some of which were graver in their nature than others, an innuendo might be made use of which charged the graver meaning, and then whether-the language was so used or understood would be a question for the jury. It would not, however, be'error of which the defendant, could complain, if, under such circumstances where an innuendo-had been so used, the court should declare in its charge to the jury that the language meant incapacity, and did not include dishonesty or malpractice or corruption. That the jury was confined to the milder meaning of the language used is surely no ground of error for the defendant. In such case the innuendo may be. disregarded, the same as in cases where the language is plain and. unambiguous. Turton v. N. Y. Recorder Co., 144 N. Y. 144; 63 St. Rep. 69. We hold that, in any possible construction which could properly be given to the words used, they were actionable per se. The court did not err in its charge to the jury upon the point under consideration.

Second. The defendant also claims that the court erred in’ charging that the second paragraph was undefended and unmitigated and in permitting the jury to find exemplary damages.

As to being undefended we think the proof is clear that no-justification was made out, and there was no denial of the publication. There was no error in so charging.

Nor do we think the court erred as to mitigation. The defendant’s claim is that the jurv should have been allowed to consider,. in mitigation of the charge, that the plaintiff was incompetent (as already spoken of), the various facts set up in the answer, and in regard to which evidence had been given, such as the impending election of trustees for the village; that plaintiff had been an official of the village (assessor), and during his incumbency great extravagance had prevailed; judgments had been obtained against the village while plaintiff was its attorney; that the charge was but part of a circular distributed to the taxpayers arrainging the plaintiff and other officials and criticising the general conduct of ■affairs and published for the purpose of arousing public attention to these matters, and that defendant was himself a taxpayer and resident of the village and interested in the affairs thereof.

Mitigating circumstances are those which, while not proving the truth of the charge, do yet tend in some appreciable degree towards such proof and thus permit of an inference that defendant was not actuated by malice in his charge. They must be of such nature as to show that defendant, though mistaken, believed the charge to be true when it was made. The mitigating facts must be connected with or bear upon the defamatory charge. Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 id. 67; Hamilton v. Eno, 81 id. 116. Mitigating circumstances under the old system, when a justification was set up, could not be proved because they did not amount to a justification. The reasons are •stated in the cases in 11 and 12 N. Y. supra. There have been circumstances adrhitted as mitigating where from prior acts or publicationt of the plaintiff the feelings of defendant have been exasperated. They do not apply here. The circumstances must otherwise be such as tend to disprove, malice by showing that the words were spoken in the honest belief that they were true, with some reason for such belief and without actual malice or evil design. Bisbey v. Shaw, supra. With this definition as to what are mitigating circumstances, we do not perceive how they can be claimed to have been proved in this case. Nothing that was proved can be fairly or reasonably said to tend to disprove malice by showing the words were spoken in the honest belief of their truth, or that there was the least reason for such belief. In other words, the facts proved had no natural tendency to induce belief that the plaintiff was incompetent or that defendant had reasonable foundation for that belief arising from those facts when he wrote the circular, or even that he had such belief at all.

The fact that the defendant did not devote his whole circular to charges against the plaintiff, and that the balance of it was upon general'village subjects which he was justified in referring to, does not render the whole publication proper, or is the whole publication thereby made a fact to be taken into consideration as a mitigating one in estimating the character of the charges against the plaintiff. The judge added to his charge on this subject, that as a result of the words being undefended and unmitigated, the jury must give some damage on account of it, and the amount thereof, he told them, rested in their good sense and discretion. We think he was right in his charge. He confined the jury upon a question of exemplary damages to consideration of facts showing the existence of special malice as distinguished from a mere presumption of malice arising from the publication, and he said to the jury that the amount of these exemplary damages would be larger or smaller or not rendered at all according as the jury should find the existence and extent or absence of this malice.

Taking the whole charge, we think the jury were properly directed. They were-to give some damage because the second article was undefended and unmitigated; the amount was reasonable in their discretion as men of good sense and fairness, and so it was left. As to the exemplary damages, the subject was also submitted to them reasonably and with good judgment, and we -can see no error in the matter of that submission.

Third. The defendant claims that the whole communication was privileged, as also was each separate paragraph relating to the ■plaintiff. Proper requests were made for instructions to the jury to that effect, and exceptions duly taken to the refusal of the court •so to charge. The question as to when a defamatory article is privileged is in the first instance one of law. Klinck v. Colby, 46 N. Y. 427; Hamilton v. Eno, 81 id. 116; Byam v. Collins, 111 id. 143; 19 St. Rep. 581. If the court hold a .communication privileged, then the question of good faith in its publication, of ■actual malice as distinguished from that which is presumed from -a defamatory publication, and also belief in the truth of the statement, are all matters for the consideration of the jury. The court is to first judge as to the claim of a privileged publication, and the ■question is whether the circumstances of the publication were such as to repel the. legal inference of malice and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the mere falsity of the charge, Lewis v. Chapman, 16 N. Y. 369, 373, per Selden, J. Where one has an interest in the matter published, or a duty, even though not of a legal nature but one only of a moral or social character and of imperfect obligation, and there is a propriety in the publication, and the party makes a statement in good faith to another who has some similar •duty or interest, or to whom a like propriety attaches to. hear or read the utterance, such a publication is privileged, and the questions of actual malice, good faith, etc., must then be submitted to the jury. Gases above cited. Privileged communications are the -exception to the general rule as to malice, and the burden rests with the plaintiff to show that the communication in question is within the exception. Byam v.. Collins, supra. The defendant had the right at all times to communicate publicly by speech, or in writing, with the citizens of Oneonta regarding the condition of municipal affairs. The approaching election for the trustees was a peculiarly appropriate occasion for it. But the occasion did not excuse the defendant in'making a personal and defamatory charge against the character of the plaintiff, nor was such a charge privileged within the meaning of the term as already defined. Hamilton v. Eno, 81 N. Y. supra. The defendant could not thus attack in an aspersive manner the private or professional character" of the plaintiff; certainly not unless there were some fair or plausible reason for thus including and attacking it in the course of proper and appropriate criticisms concerning the manner in which the affairs of the village had been conducted. We do not think the proof or circumstances show there was any such reason; nor can it fairly or appropriately be founded upon any or all of the facts, proved by the defendant. If an individual choose to attack an officer and charge him with incompetency in his professional character and criminality in his office as assessor (if the jury should construe his language), he must be prepared, when brought, into court, to prove the truth of his charge.

The court committed no error in its ruling on this subject.

Fourth. We are also of the opinion that the court rightfully-submitted the construction of the eighth paragraph to the jury. The trial court, left to the jury the question whether the language-did'not mean that plaintiff as assessor combined with other officers-to make an improper and illegal valuation in order to carry out an improper and illegal waste of the taxes of the people, and the-jury were instructed that if such were the meaning of the language it was actionable.

The counsel for the defendant criticises this charge because he-says the language is incapable of any such meaning, and also because the plaintiff in his complaint, by way of innuendo, alleged that defendant meant by this language to charge plaintiff with corruptly and dishonestly entering into an unlawful and collusive-agreement with the board of trustees of the' village to unlawfully and corruptly increase the assessed valuation of the village forth e purpose of extorting money from the taxpayers of the village. The defendant’s counsel claims that the plaintiff is bound by the allegations in his complaint as to the meaning' of the words and he cannot be permitted to reject such meaning on the trial and resort to another one, and he cites Folltard’s Starkie on Libel,. Wood’s notes, page 482, sec. 446; Hew ell on Defamation, etc., page 629, sec. 39. It is then claimed that the construction submitted to the jury is wholly different from that complaint, and-that if by any possibility the language could be construed to mean, as the court permitted the jury to find, it certainly could not be-construed to mean any such thing as alleged in the complaint, and therefore, the submission of the construction offered by the court-was error. In the first place, we might say this question was not raised by any exception to the charge or by any request to charge.

The exception raises the question generally as to the propriety of submitting the construction to the jury at all, and the defendant requested a charge that the language used was not actionable. The attention of the court was never drawn to the specific objection now made, that the judge was submitting a construction to. the jury differing in its means from that alleged in the complaint. The possible construction actually submitted to the jury for it to find or riot, while differing somewhat in language from that used, in the complaint, is yet in substantial accord with it, sufficiently so,.at any rate, to render it most important to have the defendant, call the attention of the court to the alleged difference, and thereupon make a request to charge the jury in accordance with the defendant’s contention, when the court might thereupon alter or enlarge or limit the meaning of the language already used by him. We think also the article is capable of the construction submitted to the jury to find. It is not strained or unnatural, and the fact that another and innocent meaning might also be attached to the language is not a conclusive answer. That innocent meaning was presented to the jury to find, and it was instructed that if it found such to be the real meaning of the article, it was not actionable and the plaintiff was not entitled to any damage by reason of ’its publication. In all this there was no error.

' Many other questions were argued and we have examined them but we do not think there has been any error shown, and the judgment should, therefore, be affirmed, with costs.

All concur, except O’Brien, J., not voting.

Judgment affirmed.  