
    No. 1461.
    Marc B. Tarleton vs. Abel L. Lagarde.
    The apothecary is not liable in damages to the physician merely and only because the filling of his prescriptions is, on one or two occasions, declined by the apothecary for reasons not at all impugning the physician’s capacity.
    But the apothecary does incur such liability if, without the slightest cause, he indulges in public expressions tending to create the impression of the physician’s incompetency, as for instance his diploma is not worth a straw.
    
      The court again discards the distinction of the common law as to slanderous words actionable 75er se and words slanderous in their character, but requiring proof of damage. Civil Code, Arts. 2315, 2316; 16 La. 389; 12 La. 891; 3 An. 207; 14 La. 298.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.
    
    
      Weeks & Weeks Attorneys for Plaintiff;
    A slander is an oral publication which exposes any person to hatred^ contempt, ridicule, or obloquy, or which causes him to be shunned, or which has a tendency to injure him in his occupa- . tion. 42 An. 955; 40 An. 423; 36 An. 467; 25 An. 170; Newell on Defamation, Slander and Libel, p. 84; Cooley on Torts, 193.
    “If the charges are false, injurious and made maliciously or malo animo, they combine all the elements necessary to support the action.” 40 An. 424; 45 Au. 863.
    “Our courts are not bound by the technical distinctions of the common law as to words actionable per se and words not actionable per se, and allowing for the latter only actual pecuniary damage specially proved.” 45 An. 863; 40 An. 424; 12 An. 894; 16 La. 389.
    “ Both the damage or injury and the malice may be inferred from the nature and falsity of the words and from the circumstances under which they were uttered without the necessity of special proof.” 40 An. 424; 45 An. 874; 42 An. 955; 43 An. 967; 43 An. 973; 38 Au. 161; 27 An. 214; 23 An. 280; 19 An. 322; 17 An. 64; 11 An. 206; 3 An. 69; 16 La. 389; also Stewart vs. Carlin et al., 2 La. 75.
    A druggist may, if he have valid reason, refuse to ñll a prescription. But in so doing he must take reasonable care not to cause needless injury to the reputation of the physician.
    Where, to protect the reputations of physicians, a certain custom or course of conduct has been adopted by druggists, whereby any doubt they may have concerning the prescription is kept from the patient until the physician has been seen concerning same, this custom must be followed by them. And when a druggist, seeking to injure the standing of a physician, refuses, without cause, to fill his prescriptions, and in refusing flagrantly violates this custom, maliciously communicates to the customer false im*» pressions concerning the medicine, and then goes out upon the streets and spreads false and injurious reports concerning the prescription and the physician, he is liable to him in heavy damages.
    If a lawful act be done in a proper, careful manner and injury result to another, this is damnum absque injuria, and no action lies. But if a lawful act be done in an improper, illegal manner, and this course be taken to injure another causelessly, then the party is liable to the i ijured person for all the damage which his conduct has needlessly and wantonly occasioned him.
    A person doing an act which must necessarily occasion injury to another, must do it in the manner least harmful to the rights of that other.
    Only the substance of the words need be proven. 2 La. 578; 27 An. 247: 43 An. 967.
    
      Walter J. Burke, Attorney for Defendant and Appellant:
    A druggist may lawfully refuse to fill a prescription brought to him from any physician, whatever be his motive, unless there be a contract compelling him to do so, and his refusal does not render him liable in damages. 12 An. 255.
    A druggist must exercise discretion and judgment in compounding drugs, and it is his duty, or at least he will be protected, if he does not know the nature of the drugs called for, to refuse to fill it; and to communicate his conclusion to the applicant dealing with him and reposing confidence in him is not slander. Bigelow on Torts, p. 66.
    In actions for slander, proof positive must be made of the alleged slanderous comments. To prove their substance is not sufficient; the words themselves must be proven. Am. and Brit. Ency. of Law, Vol. 13, p. 485.
    To support an action for slander it is necessary that the language used be false, injurious and uttered malo animo. 40 An. 424; Moakes’ Underhill on Torts, p. 19.
    It is only to -Words which are manifestly slanderous in their nature that the presumption of malice attaches. When it is sought to impute malice to the utterance of words, not' unmistakably so, proof of malice must be made. 34 An. 1147; 8 An. 130; 2 R. " 365. ’
    
      'Slighting comments of diplomas held by physicians, and of physicians generally, or of a class of them, is no slander of a particular physician, inasmuch as it can not affect the degree ®f respect, good will and social or business distinction to which his own acts and his own social and business habits entitle him.
    
    Where of two witnesses of plaintiff, on whom the burden of proof rests, who were present during the conversation of defendant in which he is alleged to have slandered plaintiff,' one gives a version of the affair which the other claims not to have heard, but repeats words entirely different, and the defendant denies the statement of the first witness and explains the remarks testified to by the second, the preponderance is with the defendant.
    Damages from the act of refusal to fill a physician’s prescription, even if allowable, can not be inferred from the act. They must be proven.
    Where words spoken are not necessarily and intrinsically slanderous they do not awaken the presumption of damages, but these must be specially proven.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, a physician, claims of the defendant, a druggist, damages for his refusal to fill plaintiff’s prescriptions and for slander. The defence is that defendant was unable to fill the prescriptions, and a denial of the slander imputed to defendant. From the judgment of fifty dollars against hiim, defendant appeals, and, answering the appeal, plaintiff asks that the damages awarded be increased. ...

It appears from the record the defendant did decline tó prepare two prescriptions of the plaintiff. In one'a patent medicine formed a component. The defendant seems to have been averse-to putting up prescriptions of which the patent medicine formed a part. In his own language as a witness, he was-'unwilling to'take the responsibility of such a prescription, as he was not sure of the composition of the patent medicine. There is som'e'testimdny that it is not usual to include a patent medicine as a component of prescriptions, and there is testimony it-is not infrequent. 1 At least, this ■difference in the testimony Of the physicians who' testify, deserves some consideration in connection with defendant's unwillingness" to prepare the prescriptions. With reference to'the other prescript tion, the plaintiff’s brief claims defendant should be made liable because of his refusal to fill it, avowed in his answer. But the answer is, that the prescription was not filled for want of the necessary-ingredients and other causes. On this branch of the case the propositions affirmed by the plaintiff’s case is, that a druggist is to be made liable in damages because he declines to fill prescriptions. We can not assent to this view. In many cases the druggist may have the best reasons for declining to fill prescriptions. As a chemist he may perceive or have cause to suspect the physician erred in his prescription ; or the druggist may not have at hand the ingredients; or he may distrust his ability to prepare the prescription, or other causes may disincline the druggist to undertake filling the prescription presented to him. Recognizing the room for all such causes, we can not hold that the mere refusal of a druggist to fill prescriptions furnishes any occasion to hold him for damages to the physician who gives the prescription. It does not appear from the testimony, that in refusing to fill the prescriptions the defendant used any language derogatory to the plaintiff. True, the father of the child for whom one of the prescriptions was given, states the impression as to plaintiff’s professional capacity made on his mind by defendant declining to fill the prescriptions was unfavorable. But it is quite certain no such impressions could be derived from anything the plaintiff said, and an impression arising solely from the defendant’s right to decline filling the prescriptions, obviously fur'nishes no cause for plaintiff’s action against defendant.

The slander attributed in the petition to defendant was, in the course of a discussion between him and one of his fellow citizens» begun on the street and continued in a barber shop. It commenced with a request of defendant for information of the gentleman addressed, formerly a representative in the Legislature from defendant’s parish, whether the law compelled a druggist to fill prescriptions presented to him. The information given on that subject did not suit defendant, seems to have excited him, and led him to make observations offensive and unjust to plaintiff, at least in their tendency to affect those who were gathered by the animated and ■ angry discussion, or to whom the observations might be repeated. The defendant, exercising his privilege of declining to fill plaintiff’s prescriptions, should for that very reason have abstained from any ■comments calculated, to convey impressions damaging to plaintiff’s character as a professional man. On the contrary, defendant engages in a public discussion on the subject of plaintiff’s prescriptions, in which he derided plaintiff’s diploma, i. e., he, defendant, would not give a straw for such a diploma, and he further commented on one of plaintiff’s prescriptions as containing ingredients that might kill the child. It is in proof that the plaintiff is a graduate of Tulane University Medical Department and that he is a practising physician. There is no testimony to justify defendant’s comments on plaintiff’s prescription, and there is, if possible, still less extenuation for defendant’s disparaging allusion to plaintiff’s diploma. Our jurisprudence rejects the common law distinction in actions of slander, of words actionable per se requiring no proof of damage and other words slanderous in tendency, but in respect to which the law exacts proof of damage. Under our law malice, the essence of slander, may be inferred from the words, and damages allowed without express proof. Civil Code, Arts. 2315, 2316; Miller vs. Holstein, 16 La. 389; Feray vs. Foote, 12 An. 894; 3 La. 207; 14 La. 298. The application of defendants remarks was well understood. They were uttered publicly. Their natural tendency to affect plaintiff injuriously as a professional man is obvious, and the mischief apt to be done by such language is increased when it is considered that defendant is a druggist in the community in which plaintiff is a practising physician. We have read with care the elaborate opinion of the judge of the lower court. We think that under the circumstances the judgment should be more than nominal. It is a grave matter to assail without a semblance of cause professional reputation. In our opinion the judgment should be increased to one hundred dollars.

It is therefore ordered, adjudged and decreed that the judgment of the lower court should be avoided and annulled, and it is now adjudged and decreed that plaintiff recover from defendant one hundred dollars, with costs in both courts.  