Foster v. Small

The opinion of the Court was delivered by Gibson, C. J. Though evidence of all the words alleged need not be given, it seems necessary that at least some of those that are actionable be proved as they are laid; and while the proof of speaking is for the jury, the correspondence betwixt the words spoken and the words laid, is for the court. The very words need not be proved; but where they are in fact proved, they must, it seems, correspond with the very words laid; and hence perhaps it is, that words spoken in the second person are not legal equivalents for words of the very same import spoken in the third. The only words before us, of which there is a semblance of proof, are contained in the first count: “ He is not a physician, but a two-penny bleeder.” Now though words which impute professional ignorance are certainly actionable, yet to say of a physician that he is a two-penny bleeder, imputes not want of professional skill, but want of professional dignity manifested by a petty attention to the humbler employments of the art. They are, in fact, words of mere contempt. But the time has been when the business of the bleeder was not a distinct one, and when it was performed, as it still is in the country, by physicians of [142] the first eminence. How far then are the actionable words “ he is no physician,” supported by the proof? The words sworn to by the first witness are: “ If Dr. Foster is a two-penny physician I am none; I am a regular graduate and no quack.” Now granting for the moment that proof of insinuation is equivalent to proof of assertion, and that a charge may be laid indifferently as insinuated or asserted, without regard to the proof, yet the charge insinuated here, Avas in fact not want of skill, but want of graduation; and though the imputation of being a quack might sustain an action, it is not laid as a gravamen in the jjresent. The words proved by the second witness are : “ Dr. Foster is no regular bred physician; he has no diploma; he kills his patients and bleeds them to death.” Here too it is proper to remark, the imputation of killing by blood-letting is not laid as a ground of action, and the material words are consequently those which allege irregular breeding, and want of the usual collegiate certificate. Now were these admitted to be actionable Avhen accurately laid, proof of them would not support the present declaration; for there is an evident difference, in respect to the malignity involved as well as in the injury intended to be done by it, betwixt being irregularly bred and not being bred at all. But though it was held in Cowdry v. Highley, (Cro. Car. 270,) that it is actionable to say of a physician, he is no scholar, yet rules that are the growth of a country in which collegiate testimonials are the only *passports to professional fame, are unsuitable to the habits of a whom instruction in colleges and universities was not originally attainable. Fifty years ago medicine and surgery were in the hands of American practitioners who taught their pupils-as they had themselves been taught, without that collegiate training which now is happily accessible to all; and the want of a diploma is still not indispensable to medical reputation. But decisions in Croke’s Reports are unsafe precedents for the law of slander at the present day. The same witness hoAvever testified that the defendant said on another occasion, “ something like he did before, as that he Avas no doctor, that he behaved ungentlemanly, and took patients out of his hands.” Were this not qualified by reference to something said before, the Avords “no doctor,” Avouldhave furnished matter for the jury; but the reference to the former colloquium, conclusively indicated that no more Avas meant than a repetition of the former charge. The proof therefore did not support the declaration. Judgment affirmed. Cited by Counsel, 9 Harris, 523.