The action was libel. The plaintjff was a physician and surgeon, practising his profession, and was also one of the coroners of Seneca *208county. The alleged libelous publication consisted of an article in the newspaper printed by the defendant, representing in effect that the plaintiff as coroner had held an inquest on a man, supposing him to be dead, when he wás in fact alive, and that the man would have been pronounced dead, and buried alive, but for the fortunate arrival on the scene of another physician, who discovered that the man was living and succeeded in resuscitating him.
The complaint charges the publication with innuendoes to the effect that it was made of and concerning him in his profession of a physician, and in his office of a, coroner.
The judge at the circuit, after hearing all the evidence, directed a verdict for the defendant, on the ground that the publication was not libelous per se, and that there was no proof of express malice, but on the contrary that the allegation of malice was disproved. '
It is apparent that the correctness of this decision.turns upon the 1 first point involved, for if the publication was libelous per se, then no proof of express malice was required. In that case, viz., if the publication was libelous in itself, and was not true and not privileged, then the law presumes malice and the presumption is conclusive.
To make the publication libelous per se, it was only necessary ■that it should tend to bring the plaintiff into obloquy or disgrace, ridicule or disrepute. Can it be said that such was not the tendency of the publication in question? "Was it not calculated to bring disgrace or ridicule upon a physician to say of him, in substance, that he did not know on inspection whether a man was alive or dead ? And was there not the same injurious tendency in the comparison implied in the last statement of the narration, viz., that the man might thank Dr. Lester that he was not pronounced dead' and buried alive ?
It is true that the publication does not mention the fact that the plaintiff was a physician, but he was so in fact, and was known to be so by the public among whom he lived; and the publication had the same tendency to bring him into disrepute as a physician where he was so known, as if it had named him as such. It is not necessary to mention a man’s profession or calling in order to libel him in it.
We think it must be held that the publication was libelous per *209se. If so, it was error to hold that proof of express malice was necessary, or that the presumption of malice could be rebutted.
It was no doubt competent for the defendant to prove all the circumstances of the publication in mitigation of damages; if possible to reduce the legal malice to the minimum, —but the publication being held to be libelous, and conceded to be false and not claimed to be privileged, there was no complete defense possible ; the plaintiff was entitled to a verdict; it was for the jury to say whether for nominal or substantial damages.
For the error indicated the motion for a new trial must be granted.
Smith, P. J., and Hardin, J., concurred.New trial ordered, costs to abide the event.