23 S.D. 70 | S.D. | 1909
So' far as material to the questions demanding-attention on this appeal, the pleadings are to this effect: Plaintiff alleged that he was a licensed physician and surgeon residing in the city of Brookings, Brookings county, extensively engaged in the practice of his profession in the counties of Brookings, Hamlin, and Kingsbury, his practice being especial^ directed to diseases of the eye and ear; that defendants were the proprietors, editors, .and publishers of a weekly newspaper, published at the city of Brook-ings, and that they maliciously, with intent to- injure the plaintiff, published-of and concerning him in such newspaper the following false and defamatory article: “Gilbert Lovre has been troubled considerably for some time with a cataract on one of his eyes and when Dr. O. W. Rood, the noted (?) E3re Specialist, who resides at Brookings, was here last month, Gilbert consulted him regarding it. After, an examination, the .learned doctor pronounced the trouble to be insignificant and assured the boy that it could be removed by a very simple operation. Gilbert went to Brookings a week or two ago and the operation was performed. The rest is sad to tell. The operation in itself might have been simple, but this wise and skillful man made a horrible botch of it and in consequence his victim now lies suffering intense pain and it is feared that the eye will have to be taken out. It would seem as though there ought to be some protection for the unsuspecting public against such quacks and impostors. — Estefline Tribune.” Defendants admit the publication, but deny that it-was done maliciously or with intent to injure -the plaintiff. They allege that the article was copied verbatim from a reputable newspaper published in Hamlin county, that if was reprinted as a matter of news merely; and that defendants had no reason to believe but what all of the matters contained therein were in all respects true, and that they had reason to believe, and did believe, that all the statements contained in the article were true. They also allege that all the statements contained in the article were true; that at the time of such publication plaintiff’s reputation for skill as a, physician and surgeon and as a
The theory upon which the cause was tried and submitted to the jury is indicated by the following excerpt from the charge of the learned circuit judge, to which the plaintiff duly excepted: “The court further instructs the jury that if you believe from the evidence in this case that the plaintiff at and prior to July 27, 1899, advertised the fact that he was a graduate of a medical college and that he possessed skill in the matter of treatment and operations .upon the human eye, and that he operated in Brookings, S. D., a hospital equipped with modern conveniences and appliances, wherein diseases of the eye might be successfully treated and thereby invited public attention and thereby appealed to the public for patronage, and that the defendants in this case did not originate said article, but reproduced the same for the sole purpose of warning the people of the community against the professions and advertisements of the plaintiff, published the article in question as a matter of news only, in an honest belief that the statements therein contained were Jrue, then this would constitute a complete defense, and the plaintiff in this action could not recover because the publication would then be a privileged publication.” Whatever may be the ethical rules regarding advertising generally recognized by the medical profession, no legal .distinction applicable to the issues in this case should be drawn between different methods of represent
However, the more important question is whether newspaper articles concerning the professional conduct of a practicing physician should be regarded as privileged communications merely because of the relation of the physician as such to the general public in the territory to which his practice extends. So far as applicable to this question, a privileged communication is defined by our civil Code to be one “made, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to' afford a reasonable ground for supposing, the motive- for the communication innocent.” Rev. Civ. Code, § 31. This court has held that this definition embraces newspaper articles relating to the official conduct of public .officers and
The court was requested by the plaintiff to' give the following instructions: “The court hereby instructs the jury that the application of the term 'quack’ or ‘impostor’ to a medical practitioner duly graduated from a reputable medical college and duly licensed to engage in the' practice of medicine and surgery cannot be justified by the proof of any specific acts of malpractice or. unskillful practice on his part, but such epithets could only be justified by proof that such practitioner or purported practitioner was not a lawfully graduated or licensed physician or surgeon and was only a false pretender to be such.” It was read by the court to the jury as an instruction requested by the plaintiff in the following form: “The court hereby instructs the jury that the application of the term ‘quack’ or ‘impostor’ to a medical practitioner, duly graduated from a reputable medical college, and duly licensed to engage in the practice of medicine and suygery, cannot be justified by proof of specific acts of malpractice or of unskillful practice upon