
    CARL VOGEL v. C. E. RUTH.
    Ponce,
    Law,
    No. 244.
    1. Matter published regarding another that is libelous per se is presumed to be false, and .the defendant is presumed to have published the same maliciously, and juries can inflict punitive damages against a defendant on account thereof without any proof of special damages in the premises.
    2. A communication that is libelous per se, that is prompted by a duty due to the public, even though the duty does not amount to a legal obligation, is nevertheless qualifiedly privileged, even though it is only a social or moral duty, when the defendant acts in good faith in pursuance thereof.
    3. Where one physician is in charge of a hospital sustained by philanthropic people belonging largely to one particular church denomination, but that also receives subscriptions from the public generally for the use of the institution, it is a quasi public institution, and physicians and all other citizens of a community have an interest in the same being conducted in a proper way, and along liberal lines, and a communication from an outside physician to the board of supervisors, even though it contains matter that is libelous per se as to the physician in charge, is qualifledly privileged, if the matter contained therein is true and the same was written without malice and for a good purpose.
    4. Where matter affecting a physician in his professional capacity, written to a board of supervisors over him, is held to be libelous per se, the truth of the statements contained therein may be given in evidence, with -a view to establishing qualified privilege in the writer thereof, and it is for the jury to say whether the same was written without malice and with good motives.
    5. Justification of a charge that is libelous must be as broad as the charge itself.
    Case tried January 21, 1910.
    
      Mr. N. B. K. Pettingill and Mr. Harry P. Lealce, attorneys for plaintiff.
    
      Mr. Ghas. Hartzell and Mr. Francisco Parra, attorneys for defendant.
   The facts in the case sufficiently appear from the instructions given to the jury by

Rodey, Judge,

as follows:

This is an action for libel, with the damages laid in the sum of $25,000. It is brought by Dr. Carl Yogel against Dr. C. E. Ruth, botb of whom are physicians, and both the pleadings and the evidence tend to show that both of them are professional men of high attainments as physicians and surgeons.

The law of Porto Rico permits snch an action to be brought, and § 568 of the Revised Statutes of 1902 of the island defines libel as “the malicious defamation of a person made public by writing, printing, sign, picture, representation, effigy, or other mechanical mode of publication, tending to subject him to public hatred or contempt, or to deprive him of the benefit of public confidence and social intercourse, or to injure him in his business, or in any other way to throw discredit, contempt, or dishonor upon him.”

The plaintiff charges that the defendant, well knowing the good standing of the plaintiff, etc., and intending to injure him before the board of missions of the Episcopal Church, under whom he was conducting a hospital, did compose and publish regarding him the two letters that have been introduced as exhibits and read to you in evidence. The court has heretofore held that these letters are in and of themselves libelous per se; that is, they contain matter for which plaintiff would ordinarily be entitled to bring an action, because the language affects him wrongfully and injuriously in his professional capacity as a physician and surgeon.

The defendant answers the complaint, and in substance alleges that he did not libel the plaintiff in any sense whatsoever, and had no malice in and- about his action in the premises, but that he wrote the same in good faith and in consequence of what he believed was unusual treatment he had received, as a practising physician of this community, from the plaintiff, who is the director of St. Luke’s Hospital, in and about defendant’s right or privilege to bring into and treat patients in said hospital, and that being thus interested, both on his own account and because of the sick people of the community, and believing that the hospital was being conducted in a manner quite unfair to resident physicians, and contrary to what he believed the owners, or those furnishing the means for the hospital desired. That he only wrote the letters to get information regarding the same, and in an effort to bring about a change in the premises.

You are instructed that ordinarily when one person writes and publishes matter about another, which injuriously affects the latter in or as to his profession or business, and the communication is not privileged in any way, in such case the publication, as stated, is what is known in law as libelous per se, and the rule is that the same is presumed to be false, and the defendant is presumed to have published the same maliciously, and juries can inflict punitive' damages against a defendant on account thereof, without any proof of special damage in the premises.

It is also a fundamental principle regarding the law of libel that certain classes of publications within proper bounds are absolutely privileged, such as where a subordinate officer in a public employment writes a letter in the nature of a report to a superior officer, and incidentally and of necessity libels some third person, hut this is not that sort of a case, and the only sort of privilege that can exist under the facts of this case is one that is known in law as a qualified privilege, and such a qualified privilege is defined by the text-writers as one where a party makes a communication, and such communication is prompted by a duty owed either to the public or to a third party, or that the communication is one in which the party has an interest, and it is made to another having a corresponding interest; the communication is privileged if made in good faith and without actual malice. And it is further the law that the duty under which the party is privileged to make the communication need not be one having the force of a legal obligation, but it is sufficient if it is social or moral in its nature, and the defendant in good faith believes that he is acting in pursuance thereof, although, in fact, he is mistaken.

Therefore you are instructed that, under the evidence in this case, the hospital in question is a quasi public institution, supported by donations and subscriptions, in which the public of Ponce, and all physicians practising in said community, had and have more or less of an interest in seeing that it is properly conducted. And, therefore, if you believe from a preponderance of the evidence that this defendant had good reason to believe, and did in good faith believe, that the hospital in question was not being conducted as such institutions ought to be conducted, and that he in good faith desired to get information regarding the same, and to secure necessary and required changes in its management, then any communication intended to bring that about was qualifiedly privileged, and if the defendant did not go any farther in and about the communications than was necessary or proper to effect that end he is not liable in any sense whatsoever in damages to this plaintiff.

But if, on the other hand, when writing such communications, — and this you must judge from a preponderance of the evidence and from all the facts, circumstances, and exhibits in the cause, including the letters themselves, — the defendant did not stop at seeking to get the information he desired, or in a proper effort to correct the wrongs which he honestly believed to exist, but went farther and maliciously, and with intent to injure tbe plaintiff unnecessarily, libeled bim in tbe communications to bis superior officer, or those wbo were over bim, or bad supervisory powers over bim, in and about said hospital, and that tbe charges thus made were in fact false and untrue, then tbe defendant is liable to tbe plaintiff in damages, not only for any ordinary damages which may have been shown, or you may believe to have accrued to bim, but further, it is tbe duty and tbe privilege of the jury in such case to inflict punitive or “smart money” damages against tbe defendant for such action, not that tbe plaintiff is entitled to it inherently, but as a deterrent to others against committing a like offense.

In this regard, however, you are warned that it is no part of tbe duty of a court or jury to become imbued with tbe excited feelings or contentions of either of tbe parties, or of their counsel, as to their alleged rights in tbe premises; nor is it any part of tbe duty of a court or jury to enable either of tbe parties to profit or suffer unreasonably by a decision or verdict in any case, save as tbe same may be in accordance with tbe facts and tbe law and right and justice.

On tbe one band, you must recollect that tbe size of tbe claim for damages is no reason why you should give tbe plaintiff one cent of damages even, unless tbe facts and tbe law and right and justice warrant it. And on tbe other band, tbe claim of tbe defendant that tbe plaintiff has not been damaged, and tbe efforts of a defendant to belittle a claim of a plaintiff, should have no effect in bringing about that end, unless on tbe facts as you shall believe them from a preponderance of the evidence and tbe law as here given you, such conclusion is warranted. Your damages in any such case as this, measured by these rules, can be nominal or substantial, or substantial and punitive within tbe limit claimed, or yon can refuse to grant tbe plaintiff any damages at all, as you may believe to be warranted under tbe facts and tbe law as here given you.

You are further instructed that if on this whole case you believe from a preponderance of tbe evidence that tbe defendant did in good faith, and for proper purposes, and with proper motives, and without malice to tbe defendant, write tbe communications in question, and did not go any farther in tbe same than under all tbe facts and circumstances of tbe case were reasonable and were warranted, and that tbe matter contained in his communications was, in fact, true, under tbe law as here given you, then the defendant is not liable at all to tbe plaintiff, and you should find for him without hesitation.

You are instructed though, that if in writing these letters tbe defendant as to tbe plaintiff went beyond anything that was necessary or required by tbe object be bad in view, and that tbe accusations that were libelous in and of themselves against tbe plaintiff were, in fact, untrue, and that tbe defendant so knew them to be at tbe time be wrote the letters, then tbe defendant is clearly guilty of libel against tbe plaintiff as indicated above, and malice is presumed in and about tbe writing, and you should find for tbe plaintiff as indicated in these instructions for both ordinary and punitive damages.

It is a serious thing for one professional man to accuse another of doings contrary to tbe ethics of tbe profession, for, be it said to tbe credit of tbe medical calling, its code of ethics and morals is high. And, therefore, in your consideration of tbe case you may take such fact into account, and consider, on tbe one band, bow a physician of high standing and attainments would be affected by false accusations in that regard against him, and bow, on the other hand, another physician of equally high standing and attainments (if you believe on a preponderance of the evidence that the parties are equal in that regard) would feel on witnessing any conduct on the part of one of the profession that he believed was contrary to such ethics; hence you can measure the probabilities in this cause with this knowledge in your minds, on the one hand, to enable you to say whether Dr. Vogel was in fact guilty of the unprofessional things of which he is accused, and, on the other hand, to enable you to say whether Dr. Kuth acted in good faith and without malice in making the charges set out in the letters he admits he wrote.

In your deliberations in this case you must not permit any extrinsic facts to affect you. You must throw out of your minds entirely, in so far as permitting the same to affect your verdict is concerned, the prominence of the parties, and the prominence of the witnesses, and the fact that the institution in question is one fostered under and conducted under the auspices of any particular church. And you must not permit ■ the citizenship, race, or religion of any of the parties or their witnesses to affect you as such in the least, or your acquaintance, or lack of acquaintance with the parties, their witnesses, or the attorneys on either side. Both parties have exactly equal rights before this court and before you. Neither must you permit any desire to please either party or either counsel to have thel least weight in bringing about your decision. Your verdict^ must rest entirely upon the facts and the law under these instructions.

At that point I desire to instruct you further and to define a preponderance of the evidence. A preponderance of the evi-denee for tbe decision of any point in a civil case does not necessarily mean tbe side or point upon wbicb tbe most witnesses bave testified, but it means tbe side or tbe point upon wbicb truth and justice lie, in your estimation as reasonable and sensible men.

Counsel bas properly stated to you that a justification must be as broad as a charge in a libel case. If Dr. Ruth’s statement is true, was it made for a good purpose? If it is false, and be knew it was false, then there is no defense for it. That is tbe gist of tbe case for you to decide. And another point is, that this suit is strictly between Dr. Yogel on tbe one side and Dr. Ruth on tbe other. And while, in this sort of case, it may seem odd at times that these sorts of suits are brought, yet the law in its wisdom bas said that it is proper. Tbe fathers in tbe early days of tbe country provided for tbe freedom of speech and freedom of tbe press in tbe Constitution, but it is also provided in tbe state constitutions and laws that this provision of freedom of speech and freedom of tbe press does not mean license of either, but all it means is that no bard and fast restriction is put upon tbe acts of any person in that regard before tbe fact; hence these suits are permitted for tbe purpose of preventing breaches of tbe peace in tbe community. Counsel have argued from all points of view as they see tbe matter. Jurors should be careful not to injure one party or tbe other, because in administering justice, courts or juries injure no one.

Two forms of verdict will be given you. One will read: “We, tbe jury, find for tbe plaintiff, and assess bis damages at tbe sum of blank dollars.” And tbe other will read: “We, tbe jury, find for tbe defendant.” When you bave arrived at a-verdict you will cause one of your number to sign it as foreman, and then all of you must return it into court. You may take to your rooms where you go to deliberate, the complaint, the answer, the forms of verdict, the exhibits, and these instructions. The cause is with you.

The jury found for the defendant.  