Manire v. Hubbard

110 Ky. 311 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE BURNAM.

Ajotirming.

This was an action for libel. The substance of the petition is that appellant is a physician, with a large and lucrative practice; and that the 'appellees, knowing this fact on the 14th of March, 1890, falsely and maliciously caused to be published in a newspaper known as the “Bardwell Star,” a writing, signed by them, in the following words: “'That there were no 'cases of smallpox in Oolum!bus,nor had been, as set out in the letters of Drs. Maniré and Craves, published in the Bardwell Star; that the negroes who were said to have the smallpox had no breaking out or eruption, until the attending physician, Ur. J. W. Maniré, applied'a ■salve to their faces, and caused it to bréale out.” “Meaning thereby that the plaintiff had committed an unprofessional and disgraceful act as a physician.” The lower court sustained a demurrer to the petition. Thereupon plaintiff •offered to file two separate amended petitions, which were objected to by appellees, and their objections were sustained by the court, and the amended petitions were not permitted to be filed. Neither were made a part of the record by order of the court or by a bill of exceptions, and they can not be considered upon this appeal, although they were copied into the record. See sections 128, 335, Civil Code, and especially note 20 to section 335, Carroll’s Code (Pld. 1900). The sole question, therefore, to be determined upon this appeal is, are the words in the original petition libelous? “To sustain an action for libel, the plaintiff must allege special damage, or the nature of the-charge must be such that the court can legally presume that he has been degraded in the estimation of the public, or 'has suffered other lose, either in his property, character, or business, in his domestic and social relations, in consequence of the publication.” See Townsh. Sland. & Lib., sec. 176. “Words which are published in connection with •one’s profession or calling, which imputes to him ignorance generally in his business or profession,.or such ignorance or incapacity as unfits him for its proper exercise, are actionable per se; but it is not ordinarily actionable to charge one in a business or profession with want of skill or ignorance in a particular transaction.” Newell, Defam., p. 170; Townsh. Sland. & Lib., sec. 194; 13 Enc. Pl. & Prac., p. 38; Geary v. Bennett, 65 Wis., 554, (27 N. W., 335); Southee v. Denny, 1 Exch., 196; Camp v. Martin, 23 Conn., 86. It was not libelous for appellees to publish that there were no cases of smallpox in Columbus, as this is a question upon which laymen, as well as professional experts, are entitled to entertain and might express an opinion. The additional words, “That the negroes who were said to have the smallpox had no breaking out until the attending physician applied a salve to their faces, which caused it to break out,” do not of themselves convey the meaning which appellant would attribute to them. There is no charge that this was improper treatment, or that it was resorted to from any corrupt or wrongful motive on the part of appellant. Nor do the words necessarily of themselves import that appellant was guilty of unprofessional conduct, or reflect upon his integrity. We are of the opinion that the words complained of were not actionable per se, and, in the absence of' an' averment of special damage, the petition was not good on demurrer, and the •demurrer was properly sustained. Judgment affirmed.