Cruikshank v. . Gordon

Follett, Ch. J. 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, Klinch v. Colby (46 N. Y. 427). In that case it was held that a plea of justification, and the failure of the defendant to attempt to sustain it, was insufficient evidence to warrant a finding that a prima facie privileged communication was composed and published maliciously; and it was further held that r “ In an action for libel, where, under an answer proper to the end, the defendant has shown that the *185 comnmnication was privileged, his further answer of justification by the truth of the cl large, though without proof given to sustain it, may not be taken into consideration of evidence of malice and in aggravation of the damages.” In reaching these conclusions the learned judge made some observations which have led to the understanding that the court intended to lay down a general rule that no unsustamed plea of justification could, under any circumstances, be considered by a jury in determining the amount of damages which a plaintiff might recover in an action for defamation of character. But that it was not the intention of the court or of the learned writer of its judgment to lay down a rule so broad as has been claimed, is made apparent, we think, by reference to the judgment rendered six years later in Distin v. Rose (69 N. Y. 122). In that case, an action for slander, the defendant charged the jfiaintiff with being a prostitute, and, among other defenses, justified the charge in his answer; but on the trial he failed to sustain his plea of justification, though he gave evidence tending to show that the plaintiff lived with a man as his wife, with knowledge that he had a wife living. The court was requested to charge: “ There was nothing in the defendant’s answer to enhance the plaintiff’s damages.” To which the court answered: “ That is for the jury to say.” An exception was taken, the validity of which was considered by the court. In considering this exception, the court said: “ The words proved to have been spoken imputed uncliastity by the most offensive epithets. The answer alleged in express terms that the charge was true, and then specified facts that she had lived with a man as his wife, knowing that he had at the time another wife living. If there was an entire failure of proof to sustain the charge, and the jury believed that it was inserted in the answer wantonly or maliciously, and without probable cause for believing it true, they might consider it upon the question of damages, and it was right, therefore, to decline, as matter of law, to charge that they cordd not so consider it. There was no intimation in this refusal that in this case they ought to so consider it, and the charge on the contrarydntimated that the facts proved *186 ought to he considered in mitigation of damages.” Five of the judges who sat in Klinck v. Colby, including the writer of the opinion, sat in the case last cited, and we cannot assume that the judgment in the first case was unknown to the court, or that it was regarded as in conflict with its decision in the latter case. The same rule was laid down in Bennett v. Matthews (64 Barb. 410), and its existence was not denied in Doe v. Roe (32 Hun, 628), but it was held inapplicable to that case because the evidence tended strongly to show that the defendant did not interpose the justification maliciously, but in good faith. Before the Code, the rule was vigorously stated and applied in Fero v. Ruscoe (4 N. Y. 165). It has been uniformly held, before and since the Codes, that when a defendant pleads in justification of the breach of his promise to marry, that the plaintiff has become unchaste, and on the trial makes no attempt to prove his plea, the fact may be considered by the jury in assessing the damages. (Southard v. Rexford, 6 Cow. 255; Kniffen v. McConnell, 30 N. Y. 285; Thorn v. Knapp, 42 id. 474.) Hone 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 sw'orn 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.