
    David Tim, Respondent v. Gilbert Ray Hawes, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1916.)
    Slander — action for—damages, punitive — trial — exception to charge.
    To say of a lawyer: “ He does not practice the law because he has been disbarred” is slanderous per se.
    
    The basis of punitive damages for slander is actual malice which must be proved as a fact in the case by a fair preponderance of credible evidence.
    Where in an action for slander the question of malice was not submitted to the jury at all and the trial justice did not adequately explain to the jury the basis upon which an award of punitive damages must rest, an exception to the charge of the court in that particular is well taken.
    Appeal by defendant from a judgment in favor- of plaintiff for the sum of $1,092.03 damages and costs, and from an order of the City Court of the city of New York denying a motion for a new trial.
    Gilbert Ray Hawes, appellant, in person.
    Kleiner & Kleiner, for respondent.
   Shearn, J.

Spoken of a lawyer, the words He does not practice the law, because he has been disbarred ” constitute a slander per se. It is difficult to conceive of a charge that would more seriously prejudice and injure a lawyer in his profession.

The verdict is not contrary to the evidence' or against the weight of the evidence and. the court did not err in the reception or rejection of evidence. Nevertheless, the judgment cannot stand, for the learned trial justice did not charge the jury adequately or correctly on the issue of punitive damages.

The defendant testified that his relations with the plaintiff had always been pleasant; furthermore, it was readily inferable from the circumstances attending the speaking of the slanderous words complained of that they were spoken thoughtlessly and with what amounted merely to a lack of ordinary prudence. It, therefore, became the duty of the court to submit to the jury as an issue of fact whether the defendant was actuated by malice. Crane v. Bennett, 177 N. Y. 106. The learned trial justice, however, never once alluded to the subject of malice in his charge, although the action sounds in malice. The jury was merely instructed that if it was found that the defendant spoke the words complained of, “ in addition to the actual damage, if you find the defendant wantonly or recklessly made the statement, out of a wanton or reckless disregard for the plaintiff’s reputation and character in the community, and without a proper, regard for his rights, then you have a right, in addition to compensation, to award the plaintiff what we call punitive or exemplary damages, that is, an additional sum as a fitting punishment to the defendant for such rash conduct on his part, and also as a protection to society and as a warning to the defendant and to others against the repetition of a similar offense; because manifestly it is a serious thing to have a statement of this character made of one who is a member of the bar.” Of course it is true that wantonness and recklessness may establish malice, which in turn warrants punitive damages, but it should always be made plain to the jury that it is malice, and nothing but malice, that justifies adding smart money to compensatory damages. The jury should also have carefully stated to them what recklessness ” means when employed as a basis for finding malice warranting the imposition of punitive damages. They should be made to understand that it does not mean a mere absence of ordinary care but that it imports either such gross carelessness or such total indifference to the rights of others that they are warranted in finding either a willingness to inflict injury or such a criminal indifference to the rights of others as amounts to a spirit of mischief.

It is now settled beyond question, in suits for libel or slander, that “ in order to justify the jury in awarding a sum beyond mere compensation, the plaintiff must establish the fact of actual malice, and must do so by a fair preponderance of evidence.” Cohalan v. New York Press Company, 212 N. Y. 344. It has required a good deal of litigation to make this matter entirely clear, as will be noted by a perusal of the cases of Crane v. Bennett, 177 N. Y. 106; Brandt v. Morning Journal Association, 81 App. Div. 188; affd., 177 N. Y. 544; Carpenter v. New York Evening Journal Pub. Co., 111 App. Div. 266; Amory v. Vreeland, 125 id. 850; Bingham v. Gaynor, 135 id. 426. From these cases, the law governing the award of punitive damages in cases of libel and slander may be thus summed up: The basis of punitive damages is actual malice. Actual malice cannot be presumed, but must be proved as a fact in the case by a preponderance of credible evidence. Actual malice may be established as follows: (1) By proving actual ill will. In addition to the ordinary methods of proving ill will, the words complained of may of themselves afford the proof, where, for example, an attack is couched in such venomous language and so plainly exhibits hatred as to warrant an inference of actual ill will. (2) By proving such gross negligence and carelessness as indicate a wanton disregard of the rights of others. (3) When the words complained of are proved as a fact to be false, if they are of a heinous, atrocious or extreme character, that, too, is evidence of actual malice.

Accordingly, in this case, where the question of malice was not submitted to the jury at all and there was no adequate explanation to the jury of the basis upon which an award of punitive damages must rest, the exception to the charge in this particular was well taken.

The judgment and order appealed from are reversed and a new trial ordered, with costs to appellant to abide the event.

Guy and Bijur, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  