Jones v. Diver

Perkins, J. John G. Diver sued Matthew M. Jones for slander. The complaint contained two paragraphs. The first averred that the defendant said of the plaintiff, “in my opinion the hitters that Diver fixed for Smith were the cause of his death; ” and the paragraph averred that Jones used the words in a criminal sense, intending to charge Diver thereby with the murder of Smith, and that so the hearers understood, &c. The words do not, in their usual sense, import a charge of murder; and there is no colloquium showing that they were used in a conversation about Smith as having been murdered, &c., so as to give the words a particular signification as used in the given case. There should have been, to render the paragraph valid as charging slander, per se, of an individual, simply as such. The paragraph was bad upon demurrer. Dodge v. Dacey, 2 Ind. 212; Stucker v. Davis, 8 Blackf. 414. The second paragraph of the complaint averred that the plaintiff, Diver, was a practicing physician, living upon his professional earnings; that as such, he attended upon and administered to Smith, a sick patient; that he gave him a liquid preparation, as medicine; that he died under the attendance; and that,maliciously, &c., speaking of such attendance, medicine and death, Jones, the defendant, in the presence, &c„ to injure, &c,, said “the bitters that Dr. Diver gave to John Smith caused his death. There was poison enough in them to kill ten men.” The paragraph averred special damage in the loss of practice, but did not specify particulars. [186] This paragraph was good upon demurrer; but, on motion, the allegations as to special damage, might have been made more certain by specification of patrons lost, &c. There were issues- of fact, trial and judgment for plaintiff for 250 dollars. There being 'one good paragraph in the complaint, it will support the judgment. We have said that the second paragraph of the complaint was sufficient, It complains'of a charge made against the plaintiff as a physician; made against him touching an act performed in the practice of a profession which he follows for a livelihood, and for services in which he is entitled to compensation. The charge was not made upon a justifiable occasion, as in giving testimony, or information in a proper case, And charges against a professional man, as such, calculated to destroy his business, may be actionable, per se. Craig v. Brown, 5 Blackf, 44. It was held in Fost v. Brown, 8 John. Rep. 64, that when -words used, only impute ignorance or want of skill in a particular case named, they are actionable only when they cause special, damage; and in the case at bar special damage is alleged; but it is held in Lecor v. Harris, 18 Barb. Rep. 425, that the charge of gross misconduct professionally in a particular case may be actionable per se, as clearly implying an unfitness of the malpractitioner for general employment in his profession. In the case last cited, the later authorities are collected, and they support the ruling there made. Words actionable per se are not confined to such as charge crime or whoredom. Nichols v. Guy, 2 Ind. 82. It is urged by the. appellant that the evidence does not support the judgment; but the evidence certainly tends to prove the second paragraph of the complaint, both as to the words charged, and the circumstances under which they are alleged to have been used. Where such is the fact in a case, the appellate Court feels bound to respect the finding of the [187] jury, and the judgment of the Court below as. to..the question of proof. N. B. Linsday and John Green, for the appellant. Joseph E. McDonald and A. L. Boache, for the appellee.. Per Curiam. The judgment below is affirmed, with 5 per cent, damages, and costs.