Opinion by
Mk. Justice Dean,
■ The defendant is a reputable physician and surgeon of many *37years’ practice iu Allegheny city. He had been in attendance upon one Edward Thompson for about three months before May 4, 1896; Thompson was afflicted with pleurisy. On that day a surgical operation with the purpose of draining the chest was attempted; McCready was assisted by Dr. Stybr and a medical student, Boggs; as preparatory to the operation chloroform was administered; noticing immediately an unfavorable effect, the attempt was abandoned and efforts made to restore him to consciousness, but these were unavailing and death resulted. When the alarming symptoms appeared, the wife, this plaintiff, was sent for, and when she entered the room she wildly accused Dr. McCready of causing her husband’s death, and declared that he should be made to pay for it. The widow, then, without the knowledge of McCready or Stybr, engaged Dr. Matson to make an examination of her husband’s body; he insisted, that those present at the operation which resulted in death should also be present at the post-mortem; it was set for 10 o’clock of the morning of the day of the funeral; there were present live surgeons, Matson, Ferree, Hartmeyer, McCready and Stybr; when they were about to commence the examination the plaintiff came into the room and said, “ You doctors who were not sent for can go out. ” McCready did go out at the invitation of plaintiff and urgent request of the other physicians, and had a conversation with her in the kitchen. The evidence is contradictory as to the exact words used by either; both were excited and, probably both very angry; she in substance accusing him of malpractice in causing the death of her husband, and he indignantly denying it. It appears, that the day before the post-mortem the coroner had held an inquest at which Mrs. Thompson testified as a witness, making the statement that the day the chloroform was administered her husband was much better, while the doctor alleged she had told him before the operation that he was much worse. The doctor alleged, he called her attention to these contradictory statements, and in substance charged her with perjury before the inquest. For this accusation Mrs. Thompson brought suit for slander. The ease came on for trial in April, 1897; ¡McCready took the stand as a witness in his own defense and gave his version as to what occurred, and under what circumstances the slanderous words were spoken by him. There was a verdict for plaintiff, which *38was set aside and a new trial granted by the court. At the second trial, the one we are reviewing, counsel for plaintiff offered and read in evidence the notes of the doctor’s testimony taken at the first trial, to show a repetition of the charge of perjury in open court. It is in substance the same statement as made at the second trial, to wit: that when they went to the house to administer the anaesthetic she told them her husband was a great deal worse, but when before the coroner she testified under oath that he was a great deal better that day; he said, as appears from the notes in answer to a question by plaintiff’s counsel: “ I say that it was false because the words she used on the 4th, when we went there, was that he was a great deal worse,” and said, “If you persist in making so much fuss about this, and stirring up so much excitement, I will be compelled not only to have you arrested for slander but for perjury as well.” It was denied by plaintiff, that defendant spoke these words to her, or that she heard them; she admits that she requested the doctor, who had not been invited, to leave the house. It was not denied by defendant, that he used the language as stated, and that technically they were slanderous; his main defense was, that under the circumstances there was great aggravation, and that he used the language while in passion, therefore damages should be no more than nominal. The court submitted the question of damages to the jury, in an elaborate charge. There was a verdict for plaintiff in the sum of $1,052, and we have this appeal by defendant.
The burden of appellant’s complaint in his nine assignments of error is, that in view of the uncontradicted evidence the charge tended to unduly inflame damages, especially in assuming there was ample evidence of such malice as would warrant a verdict for vindictive damages.
We think there was no evidence in this case, and we have carefully read every word of it, which would warrant a jury in finding punitive damages. A surgeon of established reputation attends a patient for three months; in the exercise of his best judgment, a critical operation is attempted which results in death; at once the widow accuses him of malpractice, and in no doubtful language threatens suit for damages; the accusation is kept up in the days following until the trial, for while she does not recollect so saying to others, she admitted at the trial *39that she believed defendant by ignorant or reckless treatment caused her husband’s death. That she made such declarations to others entirely disinterested, and to use her own language said she “ would make him pay for it,” is too clear for doubt. Smarting under such an accusation the defendant, sensitive as to his professional character, retorts in the kitchen where he was invited to an interview by her, that she was guilty of perjury before the coroner’s inquest. He assumed, as one not a lawyer might assume, that if she had said to him her husband was worse the day of his death, and then testified under oath that he was better, the sworn testimony was false and, therefore, perjury, the conclusion by no means followed; yet this was the doctor’s notion of perjury; hence the accusation. But could there be circumstances of greater provocation or probability of anger than those preceding the utterance of the slander? The court itself would not have permitted the verdict to stand, as is apparent from the charge, if this had been the only evidence on the question of malice. But the learned judge was of opinion that the repetition of the words of defendant on the witness stand at the first trial would warrant the jury in finding vindictive damages. He thus instructed the jury: “ But that is not all of this case. Assuming that the offense should be mitigated and looked upon with very considerable leniency from what occurred at the time they were originally spoken, the jury have a right to take into consideration what occurred afterwards, and if it is true, as alleged by the defendant and as seems to be shown by the testimony that is before you, that in open court a year or more afterwards lie repeated his assertion substantially to the effect that she had done that which he charged her with doing before the coroner, committed perjury, and had no witnesses to establish that fact before the jury, it is a circumstance from which you may infer that it was not simply words spoken in the heat of passion, but that they were spoken maliciously. I do not say you should so find, but there are circumstances from which you may infer that, and if you should come to that conclusion, then you have a right to add what you think proper by way of ordinary and proper compensation, whatever in your judgment would be a proper amount by way of penalty or punitive damages for a charge then made and subsequently insisted upon under circumstances that were certainly inexcusable.”
*40We do not think the testimony of a defendant, such as given by him at a former trial of the same cause, is in any correct view of the law such a repetition of the slanderous charge as aggravates the degree of malice. We do not question the soundness of the rule, that the repetition of a glanderous accusation when its falsity is known to the defendant, is evidence in aggravation of damages; we only question its application to these facts. The defendant had to answer at the first trial, as in this one, a charge of slander; as he did not deny that he was technically guilty of the charge, in his defense, he sought solely to mitigate damages, not by alleging the charge was true, in a repetition-of it, but by showing the circumstances under which it was made, and that when he made it, according to his idea of perjury, he believed it true. Notice the dilemma in which defendant was placed; he did not deny he spoke the words substantially as laid ; he did not plead justification ; he did allege however in mitigation of damages that the circumstances under which they were spoken lessened the degree of malice. If he sat silent the jury might infer the words were a flagrant malicious slander, and assess damages accordingly; if he .took the stand and testified to the circumstances attending their utterance, then that was a repetition of the slander which established the highest degree of malice, and should swell the damages. The theory is not sound; testimony honestly given in a judicial proceeding, of circumstances connected with the utterance of the slanderous words tending to mitigation of damages, cannot be urged as a malicious repetition of the slander. And this has in substance been so decided. Words used in legal proceedings pertinent to the case in hand are not actionable: 3 Bl. Com. 125. In an affidavit of exculpation the defendant averred his antagonist had sworn falsely. The words were held not actionable. If words spoken in defense in a legal proceeding, although not true, furnish of themselves no original cause of action, how can a merely necessary repetition of them as a defense in a legal proceeding heighten the degree of malice? As is said by Tilghman, C. J., in Kean v. McLaughlin, 2 S. & R. 469: “ In all judicial proceedings the parties are permitted to speak freely, and if they should even make use of harsh expressions they will not be liable to an action, although the same words spoken on another occasion *41would be actionable. But this privilege is not to be abused, nor is a party permitted to utter slanderous words against a witness by way oí insult and not in the course of his defense. If the defendant had said he would prove the testimony of plaintiff to be false, he would not have been liable to an action, although he had failed in his evidence.”
In the case before us, the defendant first uttered the slanderous words out of court at plaintiff’s dwelling; this raised a cause of action in favor of the plaintiff; on the trial of the cause, he sought to show extenuating circumstances in mitigation of damages; the jury were permitted to stamp this defense in a subsequent trial as a repetition of the slander, and swell the damages. It is a harsh rule, not sustained on either reason or authority. It was error to give to the evidence the effect allowed to it in the charge of the learned judge.
"Whether the testimony of defendant at the former trial was .admissible for any purpose we are not called upon to decide, for there was no objection to it when offered. But the sixth, ■seventh and eighth assignments, embracing those parts of the charge which permitted the jury to give it the effect of aggravating damages, are sustained. The other assignments are overruled, judgment is reversed and a venire facias de novo .awarded.