Rodgers v. Kline

George, C. J., delivered the opinion of the court. The language alleged to be libellous is as follows: “The accident of Miss Chisholm’s death, caused by malpractice, and not by her slight wound, adds tenfold to the deplorable consequences.” This simple sentence is found in an article of a column in length, published in the Vicksburg Herald in May, 1877. The article is headed, “ Rash Southerners and Philanthropic Northerners,” and contains but one other reference to Miss Chisholm’s death, in which it is stated to have been “accidental, from gangrene.” It is clear, from a perusal of the whole article, that it was no part of the object and purpose of the writer to criticise the treatment, medical or otherwise, which she received in her last illness. No mention is made of the name of any person concerned in the treatment, nor any allusion made to the fact that she had a medical attendant, unless such allusion is made in the language above quoted. The manifest object and purpose of the article, as well as its full scope, was to soften the unfavorable effect produced in the public mind by the transaction then known as the “ Chisholm massacre,” which had been greatly intensified by the death of Miss Chisholm, resulting from the effects of a gunshot wound alleged to have been inflicted by the rioters. To this end, the article alludes to the rash and excitable — 815 — nature of the Southern people in their condemnation and punishment of great crimes which appear to have been deliberately planned and executed. The writer, whilst condemning the proceedings of the mob, states, as some palliation for its unlawful action, the belief of the people of Kemper County that its intended and premeditated victims were the deliberate murderers of a highly esteemed citizen of that county, and ascribes the death of Miss Chisholm to accident, and not to the deliberate purpose of the actors in the riot; suggesting as a fact, in the language above quoted, that it was caused by malpractice, resulting in gangrene. It is clear, therefore, that the writer had no wish to reflect upon the plaintiff’s professional standing, or to bring him into disrepute. But the absence of this intent or purpose does not, per se, exonerate the publishers of the article from responsibility, if, in fact, such language was used in it as would inflict an illegal injury on the plaintiff; for the injury to him would be all the same whether it was the result of design on the part of the defendants, or of their carelessness and negligence. There is no exception taken to the ruling of the court below which holds that the language used is legally capable of such application to the plaintiff as to constitute a libel on him, and we are not, therefore, called on to express any opinion on that subject. The assignments of error raise several other questions for our determination, which we will now proceed to consider. The court charged the jury, in the third instruction for the plaintiff, that if it were established that the plaintiff was the attending physician on Miss Chisholm, and the defendants published the language above quoted, it was actionable, or constituted a libel on the plaintiff, if not justified by proof of its truth. The force of the alleged libel seems to consist in the use of the word “ malpractice.” In its technical sense, as applied to prosecutions, either civil or criminal, against a physician — 816 — for unskilful treatment of a patient under his charge, it would be actionable. But there is nothing in the article of which this language is a part, which suggests that the word was used in a technical, rather than a popular, sense. On the contrary, it is clear, from a consideration of the whole article and its nature and character, that it was not used in its technical sense; for it is an undoubted rule, that in writings intended for popular reading, and having no relation to any art or profession, a word which does not itself import that it is used in a technical sense is to have its popular signification. Monongahela Nav. Co. v. Coons, 6 Watts & S. 114. It was, therefore, error for the court to give this charge, unless the word “ malpractice,” in its ordinary signification, has but one meaning, and that meaning is libellous ; or unless a libellous signification is necessarily affixed to it by the context. We have seen that there was nothing in the context, nothing in the scope and purpose of the article, to give it a libellous meaning; but rather, if the context is to be considered as fixing beyond controversy its meaning, the contrary sense would be implied. Neither has the word “malpractice,” in its ordinary acceptation, necessarily a libellous meaning. It has several meanings: one of them, implying illegal or immoral conduct, is libellous ; and .the others — bad or evil practice, practice which is not good, practice which is contrary to established rules — are not libellous. When the language used is ambiguous, or a word has two distinct meanings, the sense in which it is used in the alleged-libel must be determined by the jury', and not by the court. In performing this duty, the jury are to consider all the circumstances of the case, — the various ordinary and popular: meanings of the word; the connection in which it is used; and also the object and purpose .of the author''in the writing in which it is found, so far as that object and purpose may be= developed to the reader by a perusal of the whole article. ' . The seventh and eighth charges given at the instance of the plaintiff are also erroneous, for the reason that in them the — 817 — court construed tlie meaning of the word “ malpractice,” instead of leaving its meaning to be ascertained by the jury. These charges assumed that the word ‘ ‘ malpractice ’ ’ meant gross ignorance and unskilfulness, which is only one of its ordinary meanings. It is settled that words spoken or written of one in his special character as the occupant of an office, or the follower of any profession or trade' from which he derives pecuniary gain, though generally not actionable, become so if they impute to such person such ignorance or incapacity as unfits him for the proper exercise of his calling. Town, on Slander, sect. 194. But it is also settled that it is not actionable to charge such a person with want of skill, or ignorance, or neglect, in a particular transaction, done in his special character, unless the charge be of such gross want of skill or ignorance as would imply a general unfitness for his calling. In Camp v. Martin, 23 Conn. 56, the slanderous words spoken of a physician were, “ If Dr. C. [the plaintiff] had continued to treat Sarah, she would have been in her grave before this time ; his treatment of her was rascally.” After verdict, the defendant moved in arrest of judgment, on the ground that the words were not actionable; and the court said: “ To charge a physician merely with mismanagement of a particular case is not of itself actionable. Such a charge implies nothing more than ignorance or unskilfulness in that case, and does not materially affect his reputation as it respects his general competency to practise his profession. The most eminent physician may mistake the -symptoms or treatment of a particular case, without detracting from his professional skill and learning.” And the court sustained the motion to arrest the judgment. To charge a professional man with neglect or uuskilfulness in the management or treatment of a particular case, is no more than to impute to him the mistakes and errors incident to fallible human nature; and as no man can rightfully claim infallibility, the imputation of the contrary can work' no legal — 818 — damage or injury to him, however much it may wound his vanity or offend his sensibilities. But as the word “ malpractice,” in its ordinary and popular use, may mean illegal and immoral conduct,' and may therefore impute such gross ignorance and unskilfulness as unfits the party for his employment, it should have been submitted to the jury to determine the sense in which it was used. It is also assigned for error, that the court permitted Dr. Whitehead to state to the jury the ordinary and popular, as also the technical, meaning of the word “ malpractice.” This witness, in the first part of his examination, stated to the jury the several popular and ordinary meanings of the word. The introduction of this evidence was irregular practice ; but, as the definitions given by the witness were correct, we cannot see that the defendants were injured, and we would not, therefore, reverse for that cause alone. The court is supposed to know the popular and ordinary meaning of all English words. In case the court doubted as to the meaning of a particular word, it would be proper for the judge to refer to a standard dictionary and inform himself. In cases in which the court is authorized to construe the words, the judge is authorized, in his charge to the jury, to expound their true meanings. And in cases like this, where a word is ambiguous, and the jury are entitled to decide in which of its several meanings it is used, it would be proper for the court to state, in the charge to the jury, these meanings, and leave it to them to adopt that in which, in their judgment, it was used by the defendant. The meaning of an English word, not a technical term and used as such, is not to be made known to the jury by an examination of witnesses before them. This rule, however, does not apply where a known English word or phrase has acquired a local meaning different from its ordinary acceptation, nor where it has acquired a peculiar meaning in a particular science, art, or trade, or among a particular sect, and where it seems to have been used in such local or peculiar sense. 1 Greenl. on Ev., sect. 295. — 819 — The further examination of Dr. Whitehead as to the technical-'meaning .of the word “malpractice” was erroneous, under the circumstances of this case. We have seen that the word was not used in the alleged libel in a technical sense, and that it' was the duty of the court so to decide; and it was therefore improper to allow evidence of this technical meaning to go to the jury. And this error is the more injurious to the defendants, as Dr. Whitehead was allowed to state to the jury that the technical meaning was also its legal and correct meaning, and that he did not think it had a different meaning from its technical meaning, in common parlance. It is also assigned for error, that the court refused to allow the defendants, at the close of the evidence, and after the charges asked had been passed on by the court, to amend their pleas of justification. The record shows, that, during the trial, the defendants 'introduced evidence tending to show improper treatment of Miss Chisholm’s wounds, in other particulars than those specified in their pleas as they then stood, and that the plaintiff introduced rebutting evidence to this new matter, and this evidence on both sides was introduced without objection. In giving the charges, however, the court instructed the jury to consider nothiug in justification except the matters set up in the pleas of the defendants; and thereupon the defendants asked leave to amend their pleas so as to embrace the matter which had thus been brought out without objection. This leave was refused, and the defendants excepted. Under sects. 621 and 623 of the Code, this action of the court was erroneous. The court had the power to allow the amendment at any time before verdict, and the defendants made the application to amend at the earliest moment after the objection had been made which the amendment was intended to obviate. There was no pretext that it would operate as a surprise on the adverse party, as the investigation had proceeded just as if the amendment had been previously made. Amendments should be liberally allowed, in — 820 — the furtherance of justice, and in this instance we can perceive no good reason for refusing the application of the defendants. The next assignment of error questions the propriety of the action of the court in refusing the fifth instruction asked by the defendants. This instruction was properly refused,, for its failure to state that the language would be actionable also if- it charged gross ignorance or misconduct in the treatment of that particular case. With this amendment to- it, it would be unobjectionable. No error was committed in excluding from the jury, the evidence offered, “ that at the time the publication was made, reports were in circulation in Kemper County, where Miss Chisholm died, that the plaintiff had been guilty of malpractice in her case.” The authorities differ as to whether a defendant may in any case, even in mitigation of damages only, prove that, prior to the publication, a general report or suspicion existed that the plaintiff had committed the act. Town, on Slander, sect. 411. The High Court of Errors and Appeals, in Binns v. Stokes, 27 Miss. 239, said : “ If the defendant had merely uttered or published a report which had been in circulation in regard to the plaintiff, and which had been generally credited by the community, the defendant having nothing to do with its origination, then such evidence would have been entirely competent.” The rule as stated by Townshend, and as recognized in the case last cited, requires that the report should have been in circulation prior to the publication, and also that it should have been generally current. The offer here comes up to neither of these requirements, and we regard both as essential. The report should have been generally current; for it seems clear that a mere idle rumor, circulating amongst a few persons only, who may be the personal enemies of-the party, should not be made the basis of a.libellous charge in a newspaper against a person, who must be treated, from the very — 821 — nature of this defence, as innocent of it; nor can such report be any excuse or palliation for publishing such a charge, unless it be shown to have been in existence before the publication, for without this restriction it could not be known but that the publication may itself be the origin of the report which is relied upon to justify it. At all events, it could not have been known to, or have influenced, the publisher unless it had been in existence prior to the publication. When such a report is admitted at all, it must be remembered it is admitted, not as justification, but only in mitigation of damages. Whether such evidence should be allowed at all, is, as we have seen, denied by many cases. It is not necessary for us to determine that question now, as the evidence offered was incompetent, when tested by the rules adopted in the cases which hold it admissible. Judgment reversed, new trial granted, and cause remanded.