Bornmann v. . Star Co.

Yam, J. The legal effect of the publication complained of is the same as if the plaintiff had been the only physician referred to and, in view of the answer which mentions him by name, as if reference had been made to him eo nomine. The article described the plaintiff as a physician and said, in substance, that he was a jackass in the guise of a doctor. It further charged that the medical school which gave him his diploma as a doctor of medicine graduated him, a brute, “ to care for us in sickness,” and a ghoul, “ to mutilate us when dead.” It criticized, by suggestion, the educational system which permitted such a savage to retain his diploma and urged the public authorities to arrest him as a degenerate graduate and to give him at least an installment of his deserts. It spoke of him as one of the doctors employed to care for the patients in a charity hospital, who hauled from his coffin, while still in the hospital awaiting burial, the dead body of a patient, “ white-headed and withered and worn with life’s battles,” and strung him up by the neck in front of Dr. Stewart’s residence, “ a grisly object swinging in the wind,” and danced around it and thus insulted both the living and the dead. Too much of the article was true, but all was not, yet the plaintiff was besmirched by it all, not as an individual, but as *218 a physician. It does not say simply that Alfred Bornmann was guilty of the outrage, or even that Doctor Bornmann was thus guilty, but it coils its sentences around him as a physician by describing him as a jackass disguised.as a doctor, a brute graduated to care for the sick, a ghoul graduated to mutilate the dead, a degenerate graduate deserving arrest and punishment, a savage unworthy to retain his diploma, who, although engaged as a doctor to treat the patients in a hospital, maltreated the corpse of an old man, who liad died there, by stringing it up in a public place and dancing around it. It is not the individual, but the doctor, the savage with a diploma, the brutish, ghoulish, degenerate graduate, who is held up to public scorn by the strong language of the article. The plaintiff was attacked in his professional capacity, because he was denounced as a physician, with a diploma, but unworthy of it, a graduate guilty of an atrocious wrong, a doctor, but nevertheless a jackass, a savage, a brute, a ghoul and a degenerate. While on duty as a doctor at the hospital he is said to have invaded its dead house and inflicted a monstrous indignity upon the body of a gray-haired old man who had been his patient but a short time before. His calling as a physician permeates the editorial and appears in nearly every sentence. As I read the entire publication, a degenerate graduate means a degenerate doctor, and an institution that graduates brutes and ghouls means one that turns out doctors who are brutes and ghouls like the plaintiff. Was it error, under these circumstances, for the trial court to hold, as matter of law and the Appellate Division to unanimously sanction the holding, that the plaintiff was assailed in his professional capacity ? The article imputed to a physician the ignorance of a jackass, the brutality of a savage and the fiendishness of a ghoul, which presumptively injured his professional reputation. Is a jackass in the guise of a doctor, a savage unfit to retain his diploma as a physician, a graduate of a medical school who .is a brute, a ghoul and a degenerate, fit to properly practice his profession ? Did not such charges necessarily *219 reflect .upon his capacity and tend to lessen public confidence in him as a professional man ? “ If the words be of probable ill-consequence to a person in a trade, or profession, or office ” they are actionable per se. Is such a physician as the plaintiff is said to be worthy of employment % Would people be apt to engage him to enter their households and care for their sick % Did not the language used “ touch ” the plaintiff, that is, affect him, in his special character, more than it would a person in any other profession or calling ? To say of a minister that he is immoral, of a lawyer that he is an ignoramus, a drunkard or a cheat, of an architect or a teller of a bank that he is crazy, of a physician that he is a humbug, or a quack, or a butcher, or a blockhead, or a quack-salver, or an empiric, or a mountebank, or that he is no scholar, or that his diploma is worthless, has been held actionable per se, as touching the vocation. (Krug v. Pitass, 162 N. Y. 154 ; Moore v. Francis, 121 N. Y. 199, 204 ; Cruikshank v. Gordon, 118 N. Y. 178, 183 ; Sanderson v. Caldwell, 45 N. Y. 398, 402 ; White v. Carroll, 42 N. Y. 161 ; Tarleton v. Lagarde, 46 La. Ann. 1368 ; 26 L. R. A. 325 ; Clifford v. Cochrane, 10 Ill. App. 570 ; Cawdry v. Highley, Cro. Car. 270 ; Peard v. Jones, Cro. Car. 382 ; Allen v. Eaton, 1 Roll. Abr. 54 ; Doddart v. Haselfoot, 1 Viner’s Abr. [S. a.] pl. 12 ; Southee v. Denny, 1 Exch. 196 ; Cooke’s Law of Defamation, 18 ; 18 Am. & Eng. Ency. [2d ed.] 961.) The case before us comes within the principle of the cases cited and others referred to therein. While the plaintiff, in view of his own testimony, deserves little sympathy, he is entitled to his legal rights and to have such character as he had left after his foolish conduct protected from destruction by defamation. The judgment should be affirmed, with costs.