Camp v. Martin

Storrs, J. The question, on the motion in arrest of judgment in this case, is, whether the declaration is sufficient, and that depends on the question, whether the words alleged to have been spoken by the defendant, fall within the rule which renders words actionable, that tend to the prejudice of a person, in his profession, trade, or business. No special damage to the plaintiff is1 alleged in the declaration, and the enquiry therefore is, whether the words laid are actionable, in themselves. On an examination of the authorities, we think it is clear, that, to' charge a physician merely with mismanagement in the treatment of a particular case, is not, of itself, actionable. Such a charge implies nothing more than ignorance or unskillfulness in that case, and does not materially affect his reputation, as it respects his .general competency to practice in his profession. The most eminent physician may mistake the symptoms or treatment of a particular case, without detracting from his general professional skill or learning. To say of him, therefore, that he was mistaken in that case, would not be calculated to impair the confidence of the community in his general professional competency. In the language of the supreme court of New York, in Foot v. Brown, 8 Johns. R., 64, “ To carry the right of action so far as to sustain a suit for words, charging a professional man with [90] ignorance in a particular case, “would be unnecessary for the protection of any profession, and would be an unreasonable check upon the freedom of discussion.” In that case, the court say, that there is not an instance, in the books which they have met with, of a suit sustained for such a charge. Our investigation has led us to the same conclusion. It has, however, been strenuously urged, by the plaintiff’s counsel, that the rule on this subject was extended in the case of Sumner v. Utley, 7 Conn. R., 257, so as to render a charge of ignorance or unskillfulness in a particular case, actionable. We think that the court, in that case, so far from varying the rule, as we have given it, clearly intended to sanction it; and that that case was decided for the plaintiff, not on the ground, that the words charged imputed to him merely ignorance or a want of skill, in the particular case respecting which they were spoken, but that, by a fair construction of them, they amounted to an imputation upon him, of a want of general professional knowledge and skill. That a charge of the latter description would be, in itself, actionable, there was not any question. The division between the members of the court did not arise from any difference of opinion, as to the principles of the law of slander, but only as to the application of those principles to the words laid in that' case. The question on which they differed was, whether the words there charged, imputed to the plaintiff general incompetency, or only ignorance or unskillfulness, in the particular case alluded to. All the judges admitted, that the words were actionable, or not, according as they did, or did not, impute to the plaintiff, ignorance or incompetency generally, in his profession. The dissenting judge thought, that they did not amount to such an imputation, and on this point only, differed from the majority of the court. That there was no diversity of opinion, as to the legal principles applicable to the case, is quite obvious, from the language of Hosmer, C. J., in expressing the opinion of the court. He says, “ I readily admit, that falsehood may, be spoken of a ph'ysi [91] cian’s practice in a particular case, ascribing to Mm only such want of information and good management as is compatible with great general knowledge and skill in his profession, and that, when such a case arises, unless some special damage exists, his character will be considered as unhurt, and no damages will be presumed. But, on the other hand, it is indisputably clear, that a calumnious report concerning a physician, in a particular case, may imply gross ignorance and unskillfulness, and do him irreparable damage. A physician may mistake the symptoms of a patient, or may misjudge as to the nature of his disease, and even as to the power of a medicine; and yet his error may- be of that pardonable kind, that will do him no essential prejudice, because it is rather a proof of human imperfection, than of culpable ignorance or unskillfulness. On the contrary, a single act or omission of his, may evince gross ignorance, and such a deficiency of skill, as will not fail to injure his reputation, and deprive him of general confidence.” And, after noticing the cases cited by the defendant’s counsel, he examines the words charged to have been spoken by the defendant, and shows that, in their fair import, they impute to the plaintiff, such monstrous and culpable ignorance and mismanagement, that every person of sense and reflection, who should believe the imputations cast upon him, would consider him generally as a. man of ignorance and unskillfulness, and unworthy of confidence, and not merely, that there was that w;ant of knowledge or skill which would arise from the common imperfections of humanity. ¥e think,’ therefore, that no new principle is established, in that case, and that the court meant only to decide that, while words imputing to a physician merely professional ignorance or mismanagement in a particular case, are not actionable in themselves, they become so, if, in addition to that, they convey the charge of general professional ignorance or ineompeteney. The declaration in this case, after alleging, that the plaintiff was a practicing physician, and, as such, had been called to, [92] and visited and prescribed for, Sarah M., states that the words laid were, by the defendant, falsely and maliciously spoken, of and concerning the plaintiff, and his professional treatment in her case, and they must be deemed to have been so spoken. If, however, those words are not in themselves actionable, it is obviously immaterial, that they were spoken falsely and maliciously, since their falsity, or the motive with which they were uttered, would not, in that case, make them slanderous, and there is no averment of any special damage, to render them so. It does not appear, from the declaration, that the words were spoken with any meaning, which was peculiar or different from their ordinary signification. The innuendo in the first count does indeed state that, by the expression of the defendant, that the plaintiff’s treatment of the person mentioned was rascally, the defendant meant, that the plaintiff’s treatment of her was such that, if it had been continued, it would have caused her death prematurely, from the ignorance, corruption and unskillfulness of the plaintiff; and, in the second count, that, by that expression he meant, that the plaintiff was guilty of base, dishonest and vile conduct towards her in his treatment of her, as her physician, and that the plaintiff’ was a low, vile person, and unworthy of public confidence. But it is well settled, that the meaning of the words laid can not be extended by the innuendo, the office of which is merely explanatory of those words. Looldng then, as we must, at the words laid in the first count, in their ordinary signification, we áre of opinion, that it appears, that they were spoken only with reference to the particular case in which it is stated the plaintiff was employed, and that they do not necessarily, naturally or fairly, impute to him general ignorance or unskillfulness, or corruption, or a want of integrity, either, generally or in the treatment of that case. But for the last expression of the defendant, that the plaintiff’s treatment of the said Sarah M. was rascally, it would not be susceptible of a doubt, that the words laid conveyed no imputation on the plaintiff, not [93] compatible with his being a practitioner of skill and learning generally, and perfect integrity. That expression, as connected with the previous words, certainly implies, that there was mismanagement of some kind, on the part of the plaintiff, in the treatment of that case. But it does not appear, from the language used, or any averment in the declaration, what constituted that mismanagement, or whether it consisted of negligence or inattention to his patient, in that case, or of some other conduct, which would indicate a want of integrity or general capacity. If the words spoken imputed to the plaintiff the former only, they would not, in our opinion, be slanderous; and we do not think that we should be warranted in giving them a more extended meaning. With respect to the second count, the words laid therein consist merely of the single expression above recited; and the considerations to which we have adverted, in regard to that expression, as constituting a part of the words laid in the first count, are applicable to this count, and show that the words laid in it are not in themselves slanderous. The declaration being insufficient, it is unnecessary to consider the questions arising on the motion for a new trial. The superior court is advised, that the judgment should be arrested. In this opinion the other judges concurred, except Waite, J., who was absent, and Ellsworth, J., who tried the cause in the court below, and was disqualified. Judgment arrested.