Gauvreau v. Superior Publishing Co.

Cassoday, J. Upon this demurrer the allegations of the complaint must be taken as true. This being so, the things alleged to have been published of and concerning the plaintiff, his business and profession, must be regarded as false, and as such knowingly published by the defendant. Marsh v. Ellsworth, 36 How. Pr. 532. The learned counsel for the defendant is undoubtedly correct in claiming “that it is not the office of an innuendo to enlarge the meaning of the words employed in the publication, but merely to point out their application to the facts previously alleged.” That rule has frequently received the [408] sanction of this court. Bradley v. Cramer, 59 Wis. 312, 313. As there stated, it is for the judge to decide whether “the publication is capable of the meaning ascribed to it by an innuendo, and for the jury to decide whether such meaning is truly ascribed to it.” Upon these principles, it is claimed that the first innuendo does not enlarge the meaning of the words previously employed in the publication, but left it for the court to determine whether such words were capable of the meaning ascribed to them by the innuendo. Not being so enlarged, it is claimed that the words so published simply charged the plaintiff with “ ignorance, unskilfulness, or want of care in a particular case or transaction,” and not-in his profession or practice generally, and hence are not actionable per se, within the authority of Garr v. Selden, 6 Barb. 416, and Gunning v. Appleton, 58 How. Pr. 471. The case of Garr v. Selden was reversed in the court of appeals (4 N. Y. 91) on the ground that the publication was privileged, and hence that it was unnecessary for the defendant to deny the malice, and so nothing was said in that court upon the question here presented. In the court below the proposition above stated was in effect asserted, but the case was decided in that court on the ground that the words published imputed a want of integrity, and hence were actionable per se, notwithstanding they were used with reference to one particular transaction, and not with reference to the plaintiff’s professional practice generally. The opinion at general term in Gunning v. Appleton, supra, seems to .be of the same import, but it can hardly be said that the decision was squarely put upon that ground. To the same effect, Foot v. Brown, 8 Johns. 64; Poe v. Mondford, 1 Cro. Eliz. 620. These last two cases were for slan-" der, and were each expressly disapproved at general term, in Secor v. Harris, 18 Barb. 425, where the spoken words, “ Doctor S. killed my children; he gave them teaspoonful doses of calomel, and it killed them; they did not live long [409] after they took it; they died right off — the same day,”— were held actionable per se. That case has been sanctioned as authoritj'-in the following New York cases: Carroll v. White, 33 Barb. 616; Bergold v. Puchta, 2 N. Y. Sup. Ct. 532. In support of this, the learned judge, writing the opinion in Secor v. Harris, cites Sumner v. Utley, 7 Conn. 257; Johnson v. Robertson, 8 Port. 486; Tutty v. Alewin, 11 Mod. 221; Onslow v. Horne, 3 Wils. 177. In each of these cases the words spoken were held actionable, although relating to a particular transaction. In the case in Porter the words were, “He killed the child by giving it too much calomel.” In the case in Modern the words were, “He killed a patient with physic.” See, also, Southee v. Denny, 1 Exch. 202; Edsall v. Russell, 43 Eng. C. L. 560; Bishop v. Latimer, 4 Law T. 775; Camp v. Martin, 23 Conn. 86; Bowe v. Rogers, 50 Wis. 598. In Edsall v. Russell the words spoken were, “He killed my child; it was the saline injection that did it; ” and it was held that the words spoken imputed to the apothecary “ gross ignorance ” and “ culpable want of caution.” Since such is the rule in slander, it certainly cannot be less stringent in libel. A physician is only required to possess the ordinary knowledge and skill of his profession. He may possess these, and much more, and yet be unable to accurately diagnose every disease presented, or always foretell the exact power and effect of medicine or treatment prescribed; but such deficiencies are incident to human imperfection. So long, therefore, as the words employed in stating the conduct of the physician in a particular case, only impute to him such ignorance or want of skill as is compatible with the ordinary or general knowledge and skill in the same profession, they are not actionable per se. But where the words so employed in detailing the action of the physician in a particular case, taken together, are such [410] as fairly impute to him gross ignorance and unskilfulness in such matters as men of ordinary knowledge and skill in the profession should know and do, then they necessarily tend to bring such physician into public hatred, contempt, ridicule, or professional disrepute, and hence are actionable per se. Bradley v. Cramer, 59 Wis. 309. “This seems only another mode,” says Mr. Townshend (sec. 194), “of imputing such ignorance as unfits the person for the proper exercise of his art, or with misconduct therein.” It then, in effect, conveys the charge of general professional ignorance, incompetency, or want of integrity. Camp v. Martin, 23 Conn. 86. It would seem that each case must depend upon the language employed, and the facts and circumstances to which it is applied. Here the publication is upon the subject of “ a serious case,” and declares that “ this ease has certain bearings on the public health and safety.” It, in effect, charges the plaintiff with treating the child that first died for teething, when there was no ground for thinking that it was so troubled, and that he failed to discover the presence of diphtheria, notwithstanding he treated it when that disease existed in an advanced stage, and at a time when it was at once discoverable on examination. The publication continues: “We think it high time that the community should understand the facts in the. case, after the matter has been talked about so much, and should suffer no more, either by the ignorance or negligence of any of its physicians. Inability to malte a diagnosis should not be a sufficient excuse, for the responsibilities of assumed knowledge cannot be avoided by a plea of ignorance.” We think these words capable of the meaning ascribed to them by the innuendo. If they were truly ascribed, a jury might, perhaps, be justified in finding that the public health and safety .of the community had already suffered from the ignorance or negligence of [411] the plaintiff as a physician, or his' inability to make a diagnosis, or his assumed knowledge. Eor these reasons that portion of the libel is held to be libelous per se. As to the words between the innuendoes, it is virtually conceded that they are actionable per se, if there is any allegation or colloquium in the complaint connecting them with the plaintiff, or stowing that they were part of the publication in question. The colloquium referred to, with the averment that the defendant published of and concerning the plaintiff the article set forth, followed by the article giving a detailed account of the plaintiff’s treatment of the children, with the characterization already mentioned, followed by the remaining portion of the article, connected therewith by the words, “ as the health report of our state says,” seems to sufficiently indicate, not only that what follows was a part of the publication, but a further characterization of the plaintiff’s conduct in the transaction detailed. Sec. 2677, R. S.; Bradley v. Cramer, 59 Wis. 309. By the Court.— The order of the circuit court is affirmed.