The sun., 1895-05-18
GIDEON CAN SUE DWYER.
c.1LING a RACING MAN CROOKED
rs AcTIONABLE AT Law.


,,.uee roIiett Would Leave It to the
- gu,e- OF the TART" and says Racing
.,,rrei. Are beneath the Courts Me-
dec, but Two Judges Are Against Hius.
Tho decision OF Justice Barrett overrullng the
a.murrer OF Philip J. Dwyer in tho action
h,oucht against him by David Gideon TO re-
sayor sso. 900 for slander, has been affirmed by
,hs General Term of the Supreme Court, in an
onnion by Justice o'Brien, in which Presiding
Iu.tice Van Brunt concurs. Justice Follett
writes n dissenting opinion In which lie holds
that no recovery can be had, because horse
racing is an illegal business
Dvycr was accused of saying tho following
words to Gideon after race In which they
v,re interested in opposed horses. on June 10
last
"you arc no sportsman. You had to leave
Nashyille on account OF turf fraud you COM
nittcd 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 towD."
The complaint charged that Gideon had been
injured in his business of racing, raising, and
breeding horses by the words and that the
words were actionabio per SO, because OF his
business. lie did not claim special damage and
the demurrer was interposed on the ground that
the words wero not actionabe per sc. and that
the action COulu not He, as uo spcCial ualnuRe
had been averrcd. The Court says that cor
rect statement of the law OF tho case was made
BY Justice Barrett as follows:
THE defamatory words were not confined to
the plaintiffs character as q sportsman. They
Also charged him with the commission of turf
frauds. Now 1t 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 thts state and elsewhere;
TO say of such ~ man that he had committed
turf frauds and that he was warned off tho turf
for crooked practices thereon. Is clearly to de-
fame him in the business thus set out. They tend
ed to prejudice him therein. To Use the language
of the books. they touched him IN his business"
the se MRsR
tho Court says: Words spoken in imputing to
aman misconduct in his trade are actionabe.
although the office or trade is ono of which the
Court cannot ta ke judicial notice." Justice
ORrien says further:
purpose OF showing that, although discussion
might be provoked rs to whether racing horses
resolved against the plaintiff. would not be con-
elusive, because that was hut part OF his busi-
ness"
II man no sportsman because no such calling Is
recognized by Law. The words sued on. says the
Judge. do not refer to Gideon rs u breeder OF
horses but as n racer of horses. The Judge
says: ~, ,,,,n, - ,o,sos m r,o, oo,,so.
business or occupation? II it is not the plain
tiff cannot recover damages for words derogi-
tory of his conduct in racing horses Since the
enactment OF chapter II OF the laws OF lS02,
the racing OF horses for stakes. in money or
property. has been generally condemned as
gambling and punished as q crime"
He declares that the decisions all show that
the Ives law was not intended to validate racing
contracts. but sin ply to suspend the operations
OF the criminal law Tho Judge says further:
If the winning or losing Of less than S25
within the space OF twenty-four hours is not a
nisdemeanOr section 34l. Penal Code. 1t has
never been held that so winning or losing is not
gam bling. or that contracts made in such games
can be enforced"
For further ground of his position the Judge
says that the alleged libcllous words are too am
h.gucus for n court to c0nstrue, and adds
Before n court could take judicial notice OF
the local meaning OF those terms 1t would have
20 be familiar with the rules and regulations of
the Nashville race course and Of tho Louisville
Jockey Club. and assume that the Judges of
those racing associations as TO be able to de-
termine what acts are crooked practices or
turf frauds under those rules" He says that
II is prnIcr when words are am biguous to Insert
the meaning IN the complaint, but he adds:
Il think II the meaning OF these terms had
beer alleged in the complaint That it would be
beneath the dignity of the supreme Court to
cngngc in an invest igation of the rules of racc
courses for the purpose of determining whether
nr not the plaintiff had been guilty OF crook ell
prnctices or OF turf frauds under their rules.
with unsrortsnanlike conduct, or with turf
frauds. in violation of the rules of race courses.
should be content with such remedies as are
provided by the rules Of the turf