O’BRIEN, J.
The action is for slander. The complaint alleges: That plaintiff is an owner and breeder of thoroughbred horses for racing purposes. That he owns a stock farm, where horses are raised and bred. That his business is, and has been for many years, the selling of such horses, and entering and running the same in races lawfully conducted and carried on by various associations in this state and elsewhere; and that he has always enjoyed and maintained a good and honorable name and reputation for honesty, fair dealing, and straightforwardness in all transactions connected with his said business. That under the rules of the various racing associations aforesaid, nearly all of which are controlled by a single central association, in order to entitle an owner of horses to enter them for prizes it is necessary that he shall not have been guilty of or concerned in any fraudulent practices on the turf in this or any other country. That any dishonesty or “crookedness” in racing by any owner at the track of any association would be taken cognizance of by the central organization, and would tend to disqualify such owner from making' entries, and lead to the disqualification for racing purposes of all horses owned by him, and thereby render his property valueless for racing purposes. That in racing parlance such disqualification is known as being “ruled off the turf.” That on June 30, 1894, at a race course, in the presence and hearing of a number of persons, the defendant spoke of and concerning and to the plaintiff and concerning his said business, in a loud and offensive voice, the following false and defamatory words in substance:
“You are no sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there, and warned you off the turf there, and you had to leave town.”
And that by reason of the premises the plaintiff was prejudiced and injured in his good name, fame, reputation, character, and business.
The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action. The defendant contends that the words were not of themselves actionable, and, that, therefore, the plaintiff cannot recover without proof of special damage, which is not alleged. The question, therefore, underlying the demurrer is, were the words thus spoken of and concerning the plaintiff actionable per se? The general rule is, that defamatory language, without proof of special damage, is not a sufficient statement of a cause of action, except in certain specified instances, all of which it is not necessary here to enumerate, it being sufficient to confine ourselves to the one exception which relates to words spoken of one in relation to his office, profession, or trade. As said in Folkard on Libel and Slander (5th Ed. p. 80):
“An action of slander may be maintained without proof of damage in the following cases: * * * Third. If any injurious imputation be made affecting the plaintiff in his office, profession, or business.”
And at page 117:
“To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible; yet they seem to yield a general rule, suffi[756]*756ciently simple and unembarrassed, viz. that words are actionable without proof of special damage which directly tend to the prejudice of a man in his office, profession, trade, or business.”
In Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, Judge Andrews in the course of the opinion, reviewing the authorities, says (page 203, 121 N. Y., and page 1127, 23 N. E.):
“Defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken. Actions of slander, for the most part, are founded upon such imputations; but the action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. The first and larger class of actions are those brought for the vindication of reputation in its strict sense against damaging and calumnious aspersions. The other class fall, for the most part at least, within the third specification in the opinion of Chief Justice De Grey, of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case, although no fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action, not1 only to protect a man’s character as such, but to protect him in his occupation, also, against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 Dowl. & R. 649: ‘Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable.’ When proved to have been spoken in relation thereto, the action is supported, and, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed.”
The defendant does not contend against these elementary principles of the law of slander, but claims that the words themselves dearly show that they were spoken -of the plaintiff, not as a business man, but as a sportsman or patron of the turf, and therefore are not in themselves actionable. We cannot, however, agree with the defendant in this contention. As well said by the learned judge below:
“The defamatory words were not confined to the plaintiff’s character as a sportsman. They also charged him with the commission of turf frauds. Now, it is distinctly averred that the plaintiff is engaged in the business of raising and selling horses, and of entering and running horses in races lawfully conducted by various racing associations in this state and elsewhere. To say of such a man that he had committed turf frauds, and that he was warned off the turf for crooked practices thereon, is clearly to defame him in the business thus set out. They tended to prejudice him therein. To use the language of the books, ‘they touched him in his business.’ ”
We think this a correct expression of the law; and while the language, if used with reference to one not engaged in the occupation of raising and racing horses, or concerning whom it was not alleged in the complaint that he was so engaged, might not be slanderous per se, we think that, not only under our code pleading, but under the stricter system of pleading that prevailed prior to its adoption, the complaint stated a good cause of action, the introduction and explanation showing the business of the plaintiff and the meaning of the words, thus definitely connecting the words spoken with the [757]*757plaintiff’s business. What was said in Kinney v. Nash, 3 N. Y. 182, is here applicable:
“The words spoken as alleged in this case derive their actionable quality from their relation to facts and circumstances extrinsic of the words themselves.
Free access — add to your briefcase to read the full text and ask questions with AI
O’BRIEN, J.
The action is for slander. The complaint alleges: That plaintiff is an owner and breeder of thoroughbred horses for racing purposes. That he owns a stock farm, where horses are raised and bred. That his business is, and has been for many years, the selling of such horses, and entering and running the same in races lawfully conducted and carried on by various associations in this state and elsewhere; and that he has always enjoyed and maintained a good and honorable name and reputation for honesty, fair dealing, and straightforwardness in all transactions connected with his said business. That under the rules of the various racing associations aforesaid, nearly all of which are controlled by a single central association, in order to entitle an owner of horses to enter them for prizes it is necessary that he shall not have been guilty of or concerned in any fraudulent practices on the turf in this or any other country. That any dishonesty or “crookedness” in racing by any owner at the track of any association would be taken cognizance of by the central organization, and would tend to disqualify such owner from making' entries, and lead to the disqualification for racing purposes of all horses owned by him, and thereby render his property valueless for racing purposes. That in racing parlance such disqualification is known as being “ruled off the turf.” That on June 30, 1894, at a race course, in the presence and hearing of a number of persons, the defendant spoke of and concerning and to the plaintiff and concerning his said business, in a loud and offensive voice, the following false and defamatory words in substance:
“You are no sportsman. You had to leave Nashville on account of a turf fraud you committed there. President Clark, of the Louisville Jockey Club, wanted to rule you off for your crooked practices there, and warned you off the turf there, and you had to leave town.”
And that by reason of the premises the plaintiff was prejudiced and injured in his good name, fame, reputation, character, and business.
The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action. The defendant contends that the words were not of themselves actionable, and, that, therefore, the plaintiff cannot recover without proof of special damage, which is not alleged. The question, therefore, underlying the demurrer is, were the words thus spoken of and concerning the plaintiff actionable per se? The general rule is, that defamatory language, without proof of special damage, is not a sufficient statement of a cause of action, except in certain specified instances, all of which it is not necessary here to enumerate, it being sufficient to confine ourselves to the one exception which relates to words spoken of one in relation to his office, profession, or trade. As said in Folkard on Libel and Slander (5th Ed. p. 80):
“An action of slander may be maintained without proof of damage in the following cases: * * * Third. If any injurious imputation be made affecting the plaintiff in his office, profession, or business.”
And at page 117:
“To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible; yet they seem to yield a general rule, suffi[756]*756ciently simple and unembarrassed, viz. that words are actionable without proof of special damage which directly tend to the prejudice of a man in his office, profession, trade, or business.”
In Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, Judge Andrews in the course of the opinion, reviewing the authorities, says (page 203, 121 N. Y., and page 1127, 23 N. E.):
“Defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken. Actions of slander, for the most part, are founded upon such imputations; but the action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. The first and larger class of actions are those brought for the vindication of reputation in its strict sense against damaging and calumnious aspersions. The other class fall, for the most part at least, within the third specification in the opinion of Chief Justice De Grey, of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case, although no fraud or dishonesty is charged, and although the words were spoken without actual malice. The law allows this form of action, not1 only to protect a man’s character as such, but to protect him in his occupation, also, against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages. The principle is clearly stated by Bayley, J., in Whittaker v. Bradley, 7 Dowl. & R. 649: ‘Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable.’ When proved to have been spoken in relation thereto, the action is supported, and, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and resulting damage are presumed.”
The defendant does not contend against these elementary principles of the law of slander, but claims that the words themselves dearly show that they were spoken -of the plaintiff, not as a business man, but as a sportsman or patron of the turf, and therefore are not in themselves actionable. We cannot, however, agree with the defendant in this contention. As well said by the learned judge below:
“The defamatory words were not confined to the plaintiff’s character as a sportsman. They also charged him with the commission of turf frauds. Now, it is distinctly averred that the plaintiff is engaged in the business of raising and selling horses, and of entering and running horses in races lawfully conducted by various racing associations in this state and elsewhere. To say of such a man that he had committed turf frauds, and that he was warned off the turf for crooked practices thereon, is clearly to defame him in the business thus set out. They tended to prejudice him therein. To use the language of the books, ‘they touched him in his business.’ ”
We think this a correct expression of the law; and while the language, if used with reference to one not engaged in the occupation of raising and racing horses, or concerning whom it was not alleged in the complaint that he was so engaged, might not be slanderous per se, we think that, not only under our code pleading, but under the stricter system of pleading that prevailed prior to its adoption, the complaint stated a good cause of action, the introduction and explanation showing the business of the plaintiff and the meaning of the words, thus definitely connecting the words spoken with the [757]*757plaintiff’s business. What was said in Kinney v. Nash, 3 N. Y. 182, is here applicable:
“The words spoken as alleged in this case derive their actionable quality from their relation to facts and circumstances extrinsic of the words themselves. In such case the plaintiff must, as he has done here, by way of introduction or inducement, state those facts and circumstances; then aver that the words spoken related to those facts and circumstances by ‘laying a colloquium,’ as it is called; and lastly, by innuendoes connect such words as need explanation with the facts and circumstances previously stated in the declaration.”
Without observing this formal or technical order of stating the facts, the plaintiff here has stated the facts and circumstances; and clearly and definitely, by proper explanations of the meaning of the words, and by a statement of the character of his business, has connected the facts and circumstances with the words used, and, in addition, alleged (but which without such allegation would be inferred) that they tended to injure and prejudice him in his business. With the light thus afforded by “facts and circumstances extrinsic of the words themselves,” accompanied by a státement as to the place and persons in whose hearing they were uttered, we think the conclusion follows that they were certain to be accepted by those w’lio heard them, not simply as meaning that the plaintiff was a mere “patron of the turf,” without any business connection with it, who was to be shunned or avoided, but as directly and seriously reflecting upon his reputation for honesty on the turf,—i. e. in the way of his occupation or profession of horse racing. The complaint alleges that at the time the words were spoken the plaintiff carried on such profession or trade, and the words tended to prejudice him therein. It was not necessary, therefore, to show special damage. In the case of Greville v. Chapman, 8 Jur. 189, 5 Q. B. 731, the defendant imputed to the plaintiff that he had entered a horse for certain stakes at Epsom, and had afterwards fraudulently withdrawn the horse, for the purpose of obtaining an unfair advantage over other persons, with whom he had made heavy wagers on the result. Held that the action would lie, and this whether or not the transactions in which the declaration showed the plaintiff to be engaged were legal. In Yrisarri v. Clement, 3 Bing. 432, 11 Moore, 308, it was held that an action does not lie for anything that may be said of tiie plaintiff’s conduct in an illegal transaction; but for misconduct imputed to him in any matter independently of the illegal transaction, though the slanderous words arise out of it, an action for slander would lie. And in Foulger v. Newcomb. L. R. 2 Exch. 327, it is said that words spoken imputing to a man misconduct in his office or trade are actionable, although the office or trade is one of wrhich the court cannot take judicial notice. Here the plaintiff alleges that he was engaged in raising and selling horses, and also in racing them for stakes and purses; and we have referred to the above cases for the purpose of showing that, although a discussion might be provoked as to whether racing horses for money was a lawful occupation, this, though resolved against the plaintiff, would not be conclusive, because that was but one part of his business which consisted also in the breeding and raising of race horses, which [758]*758might or might not be entered in races by him, and might or might not engage in races for money or in an illegal way. And, as the language would have a tendency to prejudice him in his whole business, we think that, regardless of this consideration of whether racing horses for money is or is not at common law a lawful employment, the plaintiff has made a showing that the words used were slanderous per se, and it was not necessary, therefore, to allege special damages. As, in our opinion, a good cause of action was stated in the complaint, the judgment overruling the demurrer thereto should be affirmed, with costs, but with leave to defendant to answer over within 20 days on payment of costs.
VAN BRUNT, P. J., concurs.