Swift v. Dickerman

31 Conn. 285

• Court: Supreme Court of Connecticut
• Decided: February 15, 1863
• Status: Published

Opinion

Sanford, J.

This is an action for words spoken, which impute to the plaintiff, a practising physician and surgeon, the want of professional knowledge and skill.

The defendant pleaded the general issue, with notice that upon the trial he would offer evidence of more than thirty specified cases of professional treatment on the part of the plaintiff in which he “ did not possess and employ such knowledge and skill as a physician of suitable professional knowledge and skill would and ought to employ.” Upon the trial of the issue the plaintiff offered certain witnesses to prove the speaking of the words set forth in the declaration. The defendant objected to their testimony because in a former action in favor of the present plaintiff against this defendant for similar slander, these witnesses had been used to prove the words now complained of in this suit, for the purpose of showing the defendant’s malice in that. The superior court overruled the objection, and we think it decided right.

It was obviously of no importance that the evidence pro* posed was to come from the mouths of the same witnesses who had testified on the former trial. The real question was, whether evidence of the defendant’s utterance of the particular words now declared on could be given on this trial, after the plaintiff had once used it on the trial of the other cause to show the defendant’s malice. The objection seems to rest upon the idea that for this slander the plaintiff has, presumptively, once recovered, and the defendant has once made compensation. But that idea has no foundation. On the former trial this evidence was used only for the purpose of showing ■the defendant’s malice at the time he spoke the words then declared on. It was admissible for no other purpose. What the defendant’s state of feeling toward the plaintiff was at any other time, was, abstractly considered, irrelevant to the issue, and was provable only for the sake of the inference which it authorized regarding his state of feeling when he uttered the words complained of in the cause on trial.

The jury undoubtedly were, as they always are, instructed that no damages should be given for any defamatory utterance except that declared on in the case then on trial.

If it were important now to show that this evidence was properly received on the former trial, we should refer to the cases of Williams v. Miner, 18 Conn., 464, and Mix v. Woodward, 12 Conn., 262, in which this court held such evidence admissible. And it may tend in some degree to elucidate the point now under consideration, to remark that evidence of this kind is receivable upon the same principle as where, upon a question regarding a testator’s sanity, evidence of his conduct and declarations both before and after the execution of his will is received to show what the state of his mind was when the will was executed. It is a legitimate inference from the fact that a testator was of sound mind the day before he made his will and the day after, that he was so on that day also ; and vice versa.

So in an action for slander, if the defendant made the same charge as that complained of in the suit on trial the day before or the day after the utterance complained of, evidence of that fact would conduce to prove that the charge complained of in the declaration was not made heedlessly, but was intentional and malicious.

No damages then can have been rightfully given in the former suit for the slander complained of in this. And we cannot presume either that the jury were not properly instructed on that trial, or that they disregarded such instructions.

The defendant also objected to the admission of evidence to prove that he had spoken words like those declared on in this case at other times, because those words were actionable, and some of them had been used by the plaintiff as the foundation of his recovery in the former suit.

This evidence was offered and received for the sole purpose of showing the defendant’s malice in speaking the words now declared on, and for that purpose it was admissible for the reasons just suggested. It conduced to prove a fact from which a legitimate inference regarding the defendant’s feelings and motives when he spoke the words now sued for might fairly be deduced. Every uncalled for utterance of a defamatory charge is more or less indicative of the speaker’s malice at the time of speaking, and as his malice then was provable in this suit only for the sake of the inference which it authorized- regarding his mental feelings when he spoke the words now declared on, neither the fact that the words objected to were actionable, nor that the plaintiff had recovered damages for their utterance, in the former suit, in any degree affected the question of the admissibility of the evidence to prove them now. No damages were now demanded or eould be given because they were uttered then, nor because of the malicious motives and feelings which then induced their utterance.

2. It is claimed that the superior court erred in rejecting the evidence offered by the defendant to mitigate damages.

No rule of law is better settled than that in actions of slander the defendant shall not be permitted to prove the truth of the words for the purpose of mitigating the damages. If the charge is true, that may be pleaded in justification, and must be so pleaded, or notice of justification must be given at the time of pleading, or it can not be proved upon the trial. 2 Selw. N. P., 1167; Bailey v. Hyde, 3 Conn., 463 ; 2 Greenl. Ev., § 424.

The imputation contained in the words complained of in the first count of this declaration is, that the plaintiff, professing to be a physician, and practising as such, was so ignorant and unskillful that most of his patients lost their lives by following his prescriptions ; in the second count, that the plaintiff was destitute of good character as a man, and of skill, knowledge and experience as a physician; and in the third, that he had so little professional knowledge and skill that he was more likely to kill than to cure those who employed him. Want of professional knowledge and skill, then, is the gist of the imputation contained in the words complained of. The evidence offered was of the facts and circumstances of the plaintiff’s treatment of disease in some thirty cases specified in the notice* in all of which cases, as the defendant claimed, the plaintiff evinced professional ignorance and want of skill.

Had the defendant by a special plea or notice justified the speaking of the words complained of because they were true, the evidence under such plea or notice would have been admissible. But the truth of the defendant’s charge was not pretended, and the notice was as unavailing as it was unnecessary. In this action facts which affect the amount of damages merely, can never be specially pleaded, and may always be given in evidence under the general issue without notice. And neither plea nor notice will enable a defendant to introduce evidence which has no legal tendency to prove the issue under which he offers it. Williams v. Miner, supra; Stow v. Converse, 4 Conn., 88 ; Andrews v. Vanduzer, 11 Johns., 38 ; 2 Greenl. Ev., § 425. Upon this trial the defendant made no attempt to justify the speaking of the words, but he contended that the plaintiff’s damages should be reduced because in certain specified cases ho had treated his patients in such a way as to evince his want of professional knowledge and skill.

Now damages in this kind of action are denied altogether, and the suit is barred, when the words though spoken were not defamatory, or were true, or were spoken under circumstances which justified their utterance. And damages are to be reduced where the plaintiff’s reputation in regard to the offense or misconduct imputed by the words was in fact impaired before the words were uttered, because an impaired reputation is less valuable than a sound one, and a smaller amount of injury can be done to it. And they are to be reduced also, where the cirumstances under which the words were uttered were such as to show that, although false, their utterance was not in fact malicious.

This evidence was not offered to defeat the suit, and we think it was inadmissible to reduce the damages. It was not admissible for the purpose of showing that the plaintiff’s professional reputation was impaired before the words were spoken. Reputation, or as it is sometimes called, character, is a fact to be proved by the testimony of witnesses who know it, not by the proof of specific instances of misconduct which might or might not have injuriously affected it. Every man is bound, and is supposed to be always prepared to answer and repel imputations upon his general reputation whenever that reputation is by the rules of law assailable in court, but not to answer specific charges of misconduct miconnected with the subject matter of the suit. In actions for defamation damages should be given in proportion to the value of the plaintiff’s character at the time it was assailed by the defendant, and the degree of malice which actuated the assailant. But the misconduct of the plaintiff in particular instances has no necessary connection with his reputation. It is matter of common observation that physicians of the highest professional attainments and reputation sometimes err in their treatment of particular cases of disease; and probably the practice of almost every physician affords examples of erroneous and injurious treatment; but the loss of professional reputation is by no means necessarily involved in such mistakes. It may not be known or believed that they have in fact occurred, and so their occurrence may have produced no effect upon the public mind. There is then no necessary connection between mistakes in medical practice and loss of professional reputation, and therefore the loss of reputation can not be legitimately inferred from the proof of such mistakes.

The offered evidence was inadmissible also for the purpose of showing that the defendant was not actuated by malicious motives in making the imputation. We assent to the doctrine sanctioned by this court in Williams v. Miner, that a defendant should not be deprived of the benefit of mitigating circumstances for no better reason than that they conduce to prove the truth of the charge while they fall short of it.” The defendant may show in evidence by way of excuse any thing short of a justification, which does not necessarily imply the truth of the charge, or necessarily tend to prove it true, but which repels the presumption of malice. But the only tendency of the evidence offered in the case at bar, was to prove the trnth of the charge. The offer was to prove facts and circumstances which evinced the plaintiff’s ignorance and unskillfulness, the very thing imputed to the plaintiff by the defendant’s words. In Williams v. Miner the offered evidence went to prove that the taking of the property charged as a theft was a trespass only, but a trespass committed under such circumstances as to justify, or at any rate excuse, the belief that it was felonious. The admission of that evidence therefore was not a violation of the rule that the truth of the words can not be proved in mitigation of damages. Evidence of the taking of the property was applicable alike to a felony and a trespass, and conduced to prove the one or the other according to the claim of the party offering it, and its bearing upon other facts and circumstances connected with the same transaction. The defendant claimed that she was misled by delusive appearances calculated to deceive, and she had a right to prove what those appearances were. In the case at bar the necessary implication from the facts and circumstances which the defendant proposed to prove was that the charge was true, and the evidence conduced directly to prove it so, and to prove nothing else.

Besides, it does not appear that those facts and circumstances were known to the defendant when he made the charge. Non constat but that they all came to his knowledge after he spoke the words, and if the fact were otherwise, he should have shown or offered to show it upon the trial, and that he did so should now appear upon the motion.

Lastly. The charge that “ if the jury should find that the slanders had injured the plaintiff’s character and position they might take into consideration his anxiety and suffering on that account,” was right.

It is true that the words spoken relate only to the plaintiff’s professional character and are aimed especially at his pecuniary interests dependent upon his professional calling and employment. But the natural if not the necessary effect of professional degradation and disgrace is personal anxiety and suffering on account of it. And that anxiety and suffering were proper subjects for compensation to the plaintiff, and ought to be atoned for by the defendant.

There is, and there ought to be, no other rule upon the sub-\ ject, than that a tort feasor shall be held responsible in dama- ] ges for the full amount of all the immediate injury occasioned ¡ by his wrongful act. This rule was adopted by the superior court and sanctioned by this court in the recent case of Lawrence v. Housatonic R. R. Co., 29 Conn., 390, in that of Seger v. Barkhamsted, 22 Conn., 290, and in many other cases.

It is difficult to conceive how a member of either of the learned professions can be injured in his professional character without being at the same time subjected to anxiety and mental suffering, — suffering on account of apprehended professional dishonor, to be followed as it naturally and almost necessarily is, and always ought to be, by social degradation and disgrace, and the ultimate loss of professional employment with its honors and emoluments. Bodily pain comprises but a very small part of the suffering endured by rational beings, and the injuries which the calumniator inflicts act, often entirely and always immediately, upon the mental sensibilities of his victim. Mental suffering then constitutes an important element in the calculation of compensation to be made for such an injury.

We have no occasion to controvert the doctrine of the cases cited upon this point by the defendant’s counsel, but we do not see its applicability. Haythorne v. Lawson, 3 Car. & Payne, 196, was a joint action for a libel on the plaintiffs as bankers and co-partners, and Gasely, J., correctly held that damages could be given only for the injury which the plaintiffs had suffered in their joint trade as bankers ; and for the obvious reason suggested in the argument by Sergeant Wilde, that a joint action is maintainable only for that in which the plaintiffs have a joint legal interest. In the ease of Olmsted v. Brown, 12 Barb., 657, the plaintiff seems to have failed because he had not sued the person who had injured him. That was an action by a husband for his injuries consequent upon the slander of his wife, which slander he claimed caused her illness and his consequent loss of her services and society, and the expenses of her cure. The words were spoken by the defendant, but not in the presence of the wife, nor were they communicated to her by the defendant’s direction or request. The immediate cause of the injury to the wife’s feelings, which occasioned her illness and the plaintiff’s damage, was the voluntary and unjustifiable repetition of the slander by third persons in the hearing of the wife. Mullett, J., said the plaintiff gave no proof of any relation between the speaking of the slanderous words by the defendant to the witnesses and the injury imputed to them. The plaintiff had sued the wrong party.

A new trial should be denied.

In this opinion the other judges concurred; except Dutton, J., who having been counsel in the case when at the bar did not sit.