
    Michael Davey, Plaintiff, v. Andrew Davey, Defendant.
    (Supreme Court, New York Trial Term,
    February, 1898.)
    Libel of a .tradesman — Compensatory and punitive damages.
    The printing and circulation by a person of a circular relative to his brother, who was conducting hear by a business similar to his own, stating, among other things, “that an. unscrupulous grocer .of the same name in the immediate vicinity or neighborhood advertises ‘ Davey’s teas and coffees,’ with a view to deceive the public, and may sell an inferior article,” is libelous per sc, and entitles the person libelled to compensatory and punitive damages.
    Aotioxt to recover • damages for libel published by defendant defaming plaintiff’s business methods.
    John T. Fenlon, for plaintiff.
    Joseph I. Green, for defendant.
   McAdam, J.

The law has always been considerate of the reputation" of tradesmen (Newell on Sland. & L. [2d ed.] 192; Harman v. Delany, 2 N. Y. St. Repr. 898), and when one publishes of a tradesman or merchant any matter in relation to his calling which if true would render him unworthy of patronage, one is liable to an action, it being evident that the tendency of such a publication is to bring the subject thereof into disrepute and cause- him injury. Brown v. Smith, 13 C. B. 596. Such publications are actionable without proof of special damage. Brown v. Smith, supra. The imputation imports damage, and if none is proved the jury may award substantial damages. The gist of the action is malice; yet the malice requisite is simply that implied by the 'law from the facts which give the right of action. Hartman v. Morning Journal, 46 N. Y. St. Repr. 181; Lewis v. Chapman, 16 N. Y. 372; Hamilton v. Eno, 81 id. 116; Byam v. Collins, 111 id. 143. The litigants are brothers. The defendant carried on the grocery and tea business at Ho. 2295 First avenue, and the plaintiff thereafter opened a similar business at Ho. 2331 First avenue. The defendant threatened that if the plaintiff opened a rival establishment near the. defendant’s store he would break up the business of the plaintiff; and after the latter opened the store the defendant caused to be printed and distributed broadcast 5,000 circulars, in which, after eulogistically describing the superiority of his wares and the advantage the public would derive by patronizing him, he said of and concerning the ’plaintiff and his business methods, that an unscrupulous grocer of the same name in the immediate vicinity or neighborhood advertises * Davey’s teas and coffees ’ with a Hew to deceive, the public, and may sell an inferior article.” The words, though cunningly deHsed and put together, taken in their plain -and popular sense, that in which the readers were sure to understand them (Roberts v. Camden, 9 East, 96), bear the construction that the plaintiff was an unprincipled grocer (Cent. Diet.) ; that he was dishonest in his business, for he advertised .Davey’s teas and coffees with a view to deceive the public, and that he sold inferior ’ articles, this being one of the characteristics of unscrupulous traders. While the defendant had the undoubted right to praise his own wares he had no right to single -out the plaintiff, and not only denounce his wares, but in connection therewith impugn his business integrity. Such a publication could have but one purpose, namely, to injure the paintiff iff his business, and it is, therefore, clearly libelous per se. Fowles v. Bowen, 30 N. Y. 20; Moore v. Francis, 121 id. 199; Chenery v. Goodrich, 98 Mass. 224; Mattice v. Wilcox, 71 Hun, 485; affirmed, 147 N. Y. 624. The plain- . tiff did not rest on the mere implication of malice, but went further and proved threats by the defendant to do him injury, thus indicating the presence of actual malice, or, as it is generally called, malice in fact. The defendant had no monopoly of the name Davey,”- and other members of the family might lawfully, use it. Faber v. Faber, 49 Barb. 357; Meneely v. Meneely, 1 Hun, 367; affirmed, 62 N. Y. 427; Helmbold v. Helmbold Co., 53 How. Pr. 453; Scott Co. v. Scott. Co., 58 N. Y. Supr. Ct. 379. There was room enough in the neighborhood for1 two*of that name, even in the grocery and tea business. The circular clearly points to the plaintiff and his store as the object of attack, and if there could be any possible question as to- that, it is removed by the evidence (Van Ingen v. M. & E. Pub. Co., 14 Misc. Rep. 326; Griebel v. Rochester Printing Co., 8 App. Div. 450; Palmer v. Bennett, 83 Hun, 220); but the fact was so manifest that any point in respect thereto was waived at the trial. . The plea that the defendant did not personally write thel manuscript of the circular or put it in the hands of the printer is of no consequence, , in view of the finding of the jury that-it was published by his approval; and the evidence amply sustains the finding. The distinction' between responsibility for acts of agents of merchants and for those -of employees of a public newspaper who máke publications in the performance of a duty enjoined on them by their principal, was clearly pointed out in the charge. Southern Ex. Co. v. Fitzner, 59 Miss. 581; 42 Am. Rep. 379. The rule is that “ the amount of damages in an action for libel is peculiarly within the province .of the jury. . The jury may give nominal damages, or damages to a greater or less amount, as they shall determine. The jury may accord damages which are merely compensatory, or damages beyond mere compensation, called punitive or vindictive damages, by way of example or punishment, when, in their judgment, the defendant was incited by actual malice, or acted wantonly or recklessly in making the defamatory charge.” Holmes v. Jones, 147 N. Y. 59; Warner v. P. P. Co., 132 id. 185; Karwowski v. Pitass, 20 App. Div. 118. Indeed, the amount of damages rested largely in the discretion of the jury, who had the right, in addition to awarding compensation, to inflict damages for example’s sake. Sedgw. Dam. (8th ed.), §§ 351, 352, 357; 3 Suth. Dam. 643. The defendant is a well-known merchant, having a large number of stores in different parts of the city, and his business position was such as to .give great weight to his publications, particularly one concerning his. brother, with whose character and business methods he was supposed to be entirely familiar.' The finding in favor of the plaintiff is amply supported. The only question is whether the jury were guided by a sound discretion as to the damages, which they assessed at $3,250; and in this regard the verdict is open to inspection and revision by the court. Though there is no fixed measure of damages applicable, as., they ■ must vary to suit the circumstances of each case, they ought to be reasonably proportionate to the injury done. Hewell on Sland. & E (2d ed.) 910 et seq. The plaintiff’s store was an inexpensive place, and $1,500 would be full compensation for any pecuniary loss entailed and at the same time ample punishment for the wrong, which, after all considered, consists of the defendant’s malicious purpose more than anything else. The motion for a new trial will, therefore, be granted unless within ten days the plaintiff files a stipulation waiving the excess of damages over $1,500; in which case the motion will be denied. Potter v. Thompson, 22 Barb. 87; Sears v. Conover, 4 Abb. Ct. App. Dec. 179; Diblin v. Murphy, 3 Sandf. 19; Collins v. Albany & S. R. R. Co., 12 Barb. 492; Clapp v. Hudson R. R. R. Co., 19 id. 461.

Ordered accordingly.  