Rood v. Dutcher

HANEY, P. J. So' far as material to the questions demanding-attention on this appeal, the pleadings are to this effect: Plaintiff alleged that he was a licensed physician and surgeon residing in the city of Brookings, Brookings county, extensively engaged in the practice of his profession in the counties of Brookings, Hamlin, and Kingsbury, his practice being especial^ directed to diseases of the eye and ear; that defendants were the proprietors, editors, .and publishers of a weekly newspaper, published at the city of Brook-ings, and that they maliciously, with intent to- injure the plaintiff, published-of and concerning him in such newspaper the following false and defamatory article: “Gilbert Lovre has been troubled considerably for some time with a cataract on one of his eyes and when Dr. O. W. Rood, the noted (?) E3re Specialist, who resides at Brookings, was here last month, Gilbert consulted him regarding it. After, an examination, the .learned doctor pronounced the trouble to be insignificant and assured the boy that it could be removed by a very simple operation. Gilbert went to Brookings a week or two ago and the operation was performed. The rest is sad to tell. The operation in itself might have been simple, but this wise and skillful man made a horrible botch of it and in consequence his victim now lies suffering intense pain and it is feared that the eye will have to be taken out. It would seem as though there ought to be some protection for the unsuspecting public against such quacks and impostors. — Estefline Tribune.” Defendants admit the publication, but deny that it-was done maliciously or with intent to injure -the plaintiff. They allege that the article was copied verbatim from a reputable newspaper published in Hamlin county, that if was reprinted as a matter of news merely; and that defendants had no reason to believe but what all of the matters contained therein were in all respects true, and that they had reason to believe, and did believe, that all the statements contained in the article were true. They also allege that all the statements contained in the article were true; that at the time of such publication plaintiff’s reputation for skill as a, physician and surgeon and as a [74] specialist in diseases of the eye and ear was not good and known to defendants to be not good; “that the plaintiff in many other instances and cases caused serious damage and injury to patients by reason of his unskillful treatment of them, and does not possess the amount of skill which should be possessed by a person who advertised himself as a specialist and expert in the treatment of ah diseases of the e)'e and ear, and that the plaintiff has imposed on numerous patients and upon the public generally by claiming that he is an ,able and efficient expert in the treatment of diseases of the eye and ear, when, in fact, he is not an expert or skillful in the treatment of the eye and ear,” and they deny that plaintiff was injured by the publication in any respect whatever. A verdict having been returned in favor of the defendants, the plaintiff appealed from the judgment entered thereon, and from the order denying his application for a new trial.' The theory upon which the cause was tried and submitted to the jury is indicated by the following excerpt from the charge of the learned circuit judge, to which the plaintiff duly excepted: “The court further instructs the jury that if you believe from the evidence in this case that the plaintiff at and prior to July 27, 1899, advertised the fact that he was a graduate of a medical college and that he possessed skill in the matter of treatment and operations .upon the human eye, and that he operated in Brookings, S. D., a hospital equipped with modern conveniences and appliances, wherein diseases of the eye might be successfully treated and thereby invited public attention and thereby appealed to the public for patronage, and that the defendants in this case did not originate said article, but reproduced the same for the sole purpose of warning the people of the community against the professions and advertisements of the plaintiff, published the article in question as a matter of news only, in an honest belief that the statements therein contained were Jrue, then this would constitute a complete defense, and the plaintiff in this action could not recover because the publication would then be a privileged publication.” Whatever may be the ethical rules regarding advertising generally recognized by the medical profession, no legal .distinction applicable to the issues in this case should be drawn between different methods of represent [75] ing oneself to be a competent physician. Whether or not a newspaper article falsely reflecting on the professional skill or conduct of a person engaged in the practice of medicine is privileged depends on the relation of the physician, as such, to the public, not on his peculiar methods of soliciting business. An incompetent physician who merely publishes his professional card in the local papers may do m’ore harm than one who causes full-page advertisements of his alleged skill to be published in papers of state-wide circulation. If the public should be protected from one, it should from the other. It appeared from the pleadings and plaintiff's own testimony that he was engaged in the practice of medicine as an eye and ear specialist, thereby holding himself out to the world as one qualified to treat diseases of those organs, and the fact that he had advertised his business in newspapers in Sioux Ralls or elsewhere was wholly immaterial. It was therefore error to allow the introduction of such advertisements, and to charge the jury that they should be considered in determining whether or not the article was privileged; and, as to the charge; the error was reversible notwithstanding the constitutional right of the jury in trials for libel to determine the law as well as the facts under the direction of the court Ross v. Ward, 14 S. D. 240, 85 N. W. 182, for the reason that there is nothing to refute the presumption that the jury accepted the charge as a correct statement of'the law, and were thereby induced to render a verdict different from what they would have returned had the law been correctly stated by the court. However, the more important question is whether newspaper articles concerning the professional conduct of a practicing physician should be regarded as privileged communications merely because of the relation of the physician as such to the general public in the territory to which his practice extends. So far as applicable to this question, a privileged communication is defined by our civil Code to be one “made, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to' afford a reasonable ground for supposing, the motive- for the communication innocent.” Rev. Civ. Code, § 31. This court has held that this definition embraces newspaper articles relating to the official conduct of public .officers and [76] candidates for public office. Boucher v. Publishing Co., 14 S. D. 72, 84 N. W. 237; Myers v. Longstaff, 14 S. D. 98, 84 N. W. 233; Ross v. Ward, supra. Does it also embrace newspaper articles relating to1 the professional conduct of physicians? We think not. The relation of a public officer to the public is substantially different from that of the physician. All are or may be affected by the official conduct of the former, and therefore are interested in any communication in relation thereto, while only such persons as desire to employ the latter are interested in communications relating to his professional conduct. Hence neither the proprietor of a newspaper nor any other person owes any duty to give information concerning the same unless requested to do so by someone desiring to employ the physician. Indeed, no reason exists for extending the presumption of innocent motive to false statements regarding a physician which would not apply with equal force to a minister of the Gospel, an attorney at law, a banker, merchant, or other 'person whose vocation involves voluntary transactions with people generally in the community in which such person resides. Therefore the article involved in the case at bar should not have been regarded as a privileged communication, and the circuit court’s instructions on the subject clearly were erroneous. The court was requested by the plaintiff to' give the following instructions: “The court hereby instructs the jury that the application of the term 'quack’ or ‘impostor’ to a medical practitioner duly graduated from a reputable medical college and duly licensed to engage in the' practice of medicine and surgery cannot be justified by the proof of any specific acts of malpractice or. unskillful practice on his part, but such epithets could only be justified by proof that such practitioner or purported practitioner was not a lawfully graduated or licensed physician or surgeon and was only a false pretender to be such.” It was read by the court to the jury as an instruction requested by the plaintiff in the following form: “The court hereby instructs the jury that the application of the term ‘quack’ or ‘impostor’ to a medical practitioner, duly graduated from a reputable medical college, and duly licensed to engage in the practice of medicine and suygery, cannot be justified by proof of specific acts of malpractice or of unskillful practice upon [77] the part of sard practitioner, and, if any such evidence has been given in this action, the same is wholly immaterial, and should be wholly disregarded by you.” It is reversible error for a trial judge in this state to read an instruction, as an instruction requested by one of the parties, in language substantially different from that requested. Peart v. Railway Co., 8 S. D. 431, 66 N. W. 814; Id., 8 S. D. 634, 67 N. W. 837. Clearly the language of the instruction as read was substantially different from that requested, and reversible error was committed in this respect notwithstanding the modified instruction may have stated the law correctly. The judgment and order appealed from are reversed. SMITH and McCOY, JJ., not sitting.