118 N.Y. 178 | NY | 1890
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *181 Many of the statements testified to by the witnesses, and which the jury must have found were made by the defendant, imputed, not a lack of skill in a particular case, but general ignorance of medical science, incompetency to treat diseases and a general want of professional skill. Such statements made in respect to a practicing physician are slanderous and actionable without proof of special damages. (Secor v. Harris, 18 Barb. 425;Fitzgerald v. Redfield, 51 id. 484; Bergold v. Puchta, 2 T. C. 532; Lynde v. Johnson, 39 Hun, 12; Southee v.Denny, 1 Exch. 196; Towns. L. . S. [4th ed.] § 193; Folk. Stark., § 88; 15 Am. L. Rev. 573; 19 Am. L. Reg. [N.S.] 465.) The point is made that defendant's statements all referred to the plaintiff's treatment of defendant's child, or that, at least, it was a question of fact for the jury to *184 determine whether they were not made solely with reference to that particular case. Much of the language proved to have been spoken did not refer to the treatment of the child, but related to the plaintiff's general competency and fitness to practice as a physician, and so it is quite unnecessary to consider whether statements disparaging the treatment of a particular case are, or are not, actionable without proof that special damages were caused by the words spoken.
The defendant denied in his answer the speaking of the words charged in the complaint, and alleged in mitigation that he described to three persons the plaintiff's unskillful treatment of his child, but that the words were not spoken maliciously, and further alleged: "In further mitigation of damages defendant says that plaintiff is not sufficiently nor ordinarily skillful nor competent as a physician, and has no reputation as a competent physician, and never had." The defendant neither gave nor offered any evidence in support of this allegation. In response to a request to instruct the jury that they might consider this allegation, and the defendant's failure to attempt to prove it, upon the question of damages, the court read the allegation, and said: "If you believe the imputation in the answer upon the plaintiff's professional competency is unproved, and was inserted maliciously and without probable cause, you may consider such imputation in aggravation of the damages. They had a right to plead that issue. If they fail on it and it was inserted in good faith, that would not tend to enhance the damages. But it remains on record, and if you find that it was put in wantonly and without cause, then you may consider that an aggravation of damages." To this instruction the defendant excepted, and now insists that it was erroneous, citing, in support of his contention, Klinck v. Colby (
None of the cases cited are decisive of the question under consideration, for, as is urged by the learned counsel for the appellant, the allegation quoted from the answer falls short of a justification, and is, at most, but a plea in mitigation. It is urged that pleas in mitigation being authorized by the Code, cannot be considered on the question of damages. The interposition of pleas in justification is authorized by law, nevertheless, as we think we have shown, courts have quite uniformly held, that if they were interposed in bad faith, the jury might consider the fact on the question of damages. The authorization by the Code, of pleas in mitigation is not a license for their interposition in bad faith, and for the purpose of injuring the reputation of the plaintiff, and when they are interposed for that purpose, the fact may be considered by the jury.
Two physicians, who were sworn in respect to other questions, were permitted to testify that the plaintiff was reputed to be a competent and skillful physician. This was objected to by the *187 defendant, but no ground having been stated, the exception is not available.
No error was committed in permitting the plaintiff to show that between the date when the cause of action arose and the date when the action was begun, the defendant repeated the charges on occasions other than those set forth in the complaint; nor was there any error committed in permitting the plaintiff to show that defendant had attempted to hire one of plaintiff's witnesses to leave the country.
The judgment should be affirmed, with costs.
All concur, BRADLEY and HAIGHT, JJ., in the result.
Judgment affirmed.