Twiggar v. Ossining Printing & Publishing Co.

161 A.D. 718, 146 N.Y.S. 529, 1914 N.Y. App. Div. LEXIS 5347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1914
• Status: Published

Opinion

Jenks, P. J.:

The action is libel. The defendant’s demurrer that bhe complaint did not state sufficient facts to constitute a cause of action should have been sustained. The complaint is that Carpenter began an action against this plaintiff for negligent services as a dentist, laying his damages at $1,000, in which this plaintiff answered by denial, that issue was joined, that the cause was noticed for trial and a note of issue was filed, but that the cause had not been reached for trial, and that the defendant thereupon, in a specified issue of its newspaper, “ seeking to injure the plaintiff, and especially to injure him in his profession and means of livelihood, and without stating the full facts, maliciously published the following partially false and libellous article of .and concerning the plaintiff: ‘White Plains, N. Y., July 26.— Suit against a dentist for alleged negligent services, causing the patient to spend over $200 with physicians and surgeons as a result of the ‘ unskilful and negligent ’ way in which dental work was done, was entered to-day in the Supreme Court of this county against Dr. Albert W. Twiggar, of Ossining, by J. Herbert Carpenter, Jr., of the same village. Mr. Carpenter alleges that in October, 1912, he went to Dr. Twiggar to have a root removed, and that, as a result of the ‘ unskilful ’ work of the dentist, three second teeth were exposed, a cavity was caused in the roof of his mouth, and he was afflicted with a disease of the gums and jaw. He sues to recover $5,000 damages.’”

In Foot v. Brown (8 Johns. 64, 68) it was decided that a charge of ignorance or want of skill of a lawyer in a particular case was not actionable in the absence of pleading and of proving special damages. The opinion is Per Curiam, but the possibility, if not the probability, is that it was prepared by Kent, Ch. J. (See Memoirs of Chancellor Kent, by William Kent, 118.) This rule has been affirmed in Tobias v. Harland (4 Wend. 541), in Lynde v. Johnson (39 Hun, 14), in Mattice v. Wilcox (147 N. Y. 630), in Battersby v. Collier (34 App. Div. ), in Outcault v. N. Y. Herald Co. (117 id. 534), in Gunning v. Appleton (58 How. Pr. 471), and in other cases.

This rule is subject to the limitation that words, although directed to a single case, may in themselves imply general unskillfulness or general ignorance in the calling. (Compare Sumner v. Utley, 7 Conn. 257, and Camp v. Martin, 23 id. 86. See Cruikshank v. Gordon, 118 N. Y. 183; Folkhard’s Stark. Sland. & Lib., Wood’s Notes, § 88.) I think that the words in this case are within the rule. (See Gunning v. Appleton, supra.)

If the publication was not libelous per se, only special damages are recoverable, and these must be pleaded. (Foot v. Brown, supra; McNamara v. Goldan, 194 N. Y. 315.) If not, then such defect is open to general demurrer. (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Fagan v. N. Y. Evening Journal Pub. Co., 129 App. Div. 28; Langdon v. Shearer, 43 id. 607; Gunning v. Appleton, supra.)

The order must be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with costs, with leave to the plaintiff to plead within twenty days.

Burr, Thomas, Carr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs, with leave to plaintiff to plead within twenty days upon payment of costs.