
    John T. Alpin v. Elizabeth R. Morton, administratrix of Rebecca Morton, deceased.
    1. Under the provisions of the 399th. section of the code, an action for slander does not abate by the death of the plaintiff during the pendency of the suit.
    2. In an action for slander, where certain actionable words were charged in the petition to have been spoken of the plaintiff on a day named, and at sundry other times between that day and the commencement of the suit— held, that, in the absence of a motion to separately state the different causes of action, or make them more definite, as authorized by the code, any utterance of the words charged by the defendant between the day mentioned in the petition and the commencement of the suit, may be considered as a ground for recovery of damages. But evidence of the speaking of the same words by him after the commencement of the suit, is admissible only for the purpose of proving malice in the utterance of the words mentioned and relied on in the petition as a ground of recovery, and cannot be considered as a foundation of a recovery, nor to increase the damages, further than as they affect the degree of malice with which the words spoken within the time mentioned in the petition and relied on as a ground of recovery, were uttered.
    3. A statement made by a physician that an unmarried female patient is pregnant, is noka privileged communication, unless it be made in good faith to one who is reasonably entitled to receive the information; and when made to others, and the statement is false, he is not relieved from liability to the injured party, merely because, on examination of the patient, he believed it to be true. Such belief, however, may be considered in mitigation of damages.
    4. Quere whether it is error to charge the jury, in an action for slander, that “in estimating the damages,” they may take into consideration “the pecuniary ability of the defendant to respond.” Per Day, J.
    Error to the district court of G-uernsey county.
    On the thirty-first day of October, 1865, Rebecca Morton, by Elizabeth R. Morton, her next .friend, brought an action for slander against John T. Alpin in the court of common pleas of Guernsey county.
    It is averred in the petition that the plaintiff is sixteen years of age and unmarried; that the defendant is a physician, and was employed by her mother to treat the plaintiff ; that, for the purpose of injuring her good name and to bring her into disgrace, on the “ fifth day of April, 1865, and at sundry other times since that date, and before th<s commencement of the suit,” the defendant falsely and maliciously said of the plaintiff, that he thought there was some chance for Eebecca’s life yet; that he was afraid that swelling in Eebecca’s bowels originated from some cause they would not suspect; that he was not often mistaken in such things, and thought the swelling would develop itself; that he had made a partial examination of her, and satisfied himself that she was with child ; and said that she had got rid of it, etc.
    After the service of summons ou the defendant, and before .answer filed, Eebecca Morton died.
    At the next term of the court, in February, 1866, Elizabeth E. Morton, the mother of the deceased, having been appointed administratrix of her estate, came and suggested the death of Eebecca Morton and moved the court to be made plaintiff in the case, which motion was granted by the court, and the defendant excepted.
    Thereupon the defendant answered :
    1. That the cause of action did not survive, and that by reason of the death of the plaintiff, pending the suit, the action abated.
    2. That he did not fálsely and maliciously speak the words as charged in the petition.
    3. That no damage had accrued to the estate of the deceased by reason of the supposed grievances.
    To each of these defences the plaintiff demurred, and the court sustained the demurrer to the first and third defences, and gave the defendant leave to amend his second answer. The defendant filed an amended answer denying the speaking the words charged, as alleged in the petition.
    The case was twice tried to a jury, and resulted in a ver-dict, on the first trial, of $2,716.08, and, on the second, in a verdict of $2,200 for the plaintiff.
    The defendant moved for a new trial on the ground that the verdict was against ■ the evidence ; that it was against the law; that the damages were excessive; that the court misdirected the jury, and erred in refusing to charge as requested by defendant. This motion was overruled, and judgment was entered on the verdict.
    The defendant duly excepted to all the rulings of the court, and took a bill of exceptions, showing what the evidence tended to prove, the requests to charge, and the charge of the court.
    The plaintiff proved, on the trial, the general allegations in the petition, and by a Mrs. Hatfield, that the defendant, on the fifth of April, 1865, spoke the words charged in the petition ; that July 8, 1865, he told the mother when alone that Rebecca was pregnant; and by a Mrs. Starr that he told her on the 21st day of July, 1865, that he examined Rebecca and believed she was pregnant, and that if she was not then, it had been made way with. The plaintiff introduced other witnesses showing, that before and after the commencement of the action, the defendant made similar statements to them. The charge requested and that given are sufficiently shown in the opinion of the court.
    On error, in the district court, the judgment of the common pleas was affirmed. To reverse these judgments, this petition in error is prosecuted in this court..
    
      A. 6r. Thurman for plaintiff in error:
    1. The common pleas erred in permitting the administratrix to be made a party.
    That a cause of action in slander does not, at common law, survive the death of either the defamer or the defamed, is familiar law. Dial v. Holter, 6 Ohio St. 246.
    That this was the law before the code, is undeniable. Ioidem; Long v. Hitchcock, 3 Ohio, 275.
    That it is still the law in Ohio, when no action is pending at the death, is equally certain. The only causes of action, in addition to those which survive at commen law, that survive by force of the code, are, an action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud. Code, sec. 32.
    But it is claimed, that Rebecca Morton having brought the action, the cause of action survived her.
    
      That this is not the common law doctrine, or the law of Ohio before the code, is conclusively shown by the authorities already cited.
    But it is claimed that sec. 399 of the code makes it the law. It is said that, under the provisions of this section, if an action be brought, the death of the defendant abates it, but the death of the plaintiff does not. If this be the true construction, the code has, in this particular, an undeniable claim to originality. No similar law is to be found in any other body of jurisprudence. Such a construction of the code makes it unreasonable and absurd. Should it be said, “ Ita lex scripta est,” I reply, that it behooves us to know not only what is written, but also what is meant by that which is written. And if any supposed meaning would render the law absurd, we are bound to look for some less objectionable meaning, and even to “ deviate from the received sense ” of the words, to obtain such better meaning. 1 Bla. Com. [60] ; and we should compare the particular provision with the context and with other laws. Idem. [59.]
    The context not only does not sustain the plaintiff's intei’pretation of sec. 399, but is quite inconsistent with, and repugnant to, that interpretation.
    As to the other laws : If the cause of action survives to the administrator, it is an asset of the estate, and must be appraised under the administration law. Is that so ? And is the administrator bound to prosecute the cause of action, or be guilty of mal-administration ? And will the pendency of an action of slander, prosecuted by an administrator, prevent an estate from being declared insolvent ?
    Upon the whole, it seems to me that the word “ which" in sec. 399, must be held to refer to its immediate antecedent only, a cause of action “against a justice of the peace for misconduct in office.” The rule of interpretation is well established. A relative pronoun is held to refer to its immediate antecedent only, unless it plainly appear that a more extended reference was meant. No such extended meaning does appear in this case. On the contrary, reason requires that the restricted meaning should prevail.
    
      2. The second defence filed by the defendant was demurred to by the plaintiff. The demurrer was never disposed of. This was error. The defence was valid. Malice in the •speaking of the words was essential to the cause of action. The amended answer was not a substitute for the entire original answer. It did not supersede defence no. 2. It was simply a further answer. By this “furthe!*” answer he denied the speaking of the words, and nothing more. By ■defence no. 2, he denied that they were spoken maliciously. The jury never passed upon the essential question of malice. The statute, as well as the common law, requires issues of law to be first disposed of. 5 Ohio St. 89. But here a vital question of law was never .disposed of.
    3. The court erred in refusing the instruction, asked by ■defendant, aiid in its charge. If the charge of the court were not positively erroneous, yet, taken in connection with its refusal to charge as requested, it was calculated to mislead the jury; and, in such a case, this court has decided that the judgment ought to be reversed. W. M. Ins. Co. v. M. & M. M. Ins, Co. 5 Ohio St. 450.
    
      II. Skinner also for plaintiff in error:
    1. The cause of action did not survive the plaintiff, and the court could not create one in the personal representative. Chitty’s PI. 67; Code, secs. 39, 398, 399, 400, 401, 402, 407, •408, 409. See Swan’s PI. under the code.
    2. The court erred in its charge to the jury, and in refusing to charge, as requested by defendant, principally, as to the effect to be given to the evidence on the questions of malice and damages, and in mitigation, &c. Van Derveer v. Sutphin, 5 Ohio St. 293; 2 Starkie on Slander, 54, et seq., 2 Greenl. Ev. secs. 271, 418, note.
    The pecuniary ability of the defendant to respond, in an action for slander, does not constitute an element of dam' ages. A respectable poor man or woman uttering a slander, would do precisely the same damage that a rich man or woman would.
    
      
      J. W. White, for defendant in error:
    1. At common law the suit would have abated by the-death of the plaintiff, but that rule is changed by sec. 399 of the code. Flynn, Adm’r v. Hirsehauer et al, 1 Handy’s. Rep. 480.
    2. As to what the court said to the jury concerning “the-pecuniary ability of the defendant to respond.” The bill of exceptions does not show that there was any evidence-submitted upon the subject. The charge was not erroneous. Stevens and Wife v. Handly, Wright’s Rep. 122.
    3. In regard to the charge of the court, and the refusal to charge, as to the effect to be given to language used by the defendant at times not embraced in the petition. The-charge taken as a whole could not have misled the jury. Vanderveer v. Sutphin, 5 Ohio St. 296. The charge requested and refused was not good law,
    4. The charge requested as to the defendant’s professional-examination of the patient, and the expression of his opnion as to her ailment, was properly qualified by requiring that the opinion should not be expressed to those who were not. entitled to receive it.
    5. The amended-answer is a general denial of the plain-' tiff’s cause of action, a new answer covering all that is in defense no. 2, and therefore superseded it. Lewis v. Coulter, 10 Ohio St. 451; Dunlap v. Robinson, 12 Ohio St. 530.
   Day, J.

The first question presented by the record, is-whether the death of the plaintiff in an action for slander pending the suit abates the action. At common law the action dies with the person. Ireland v. Champneys, 4 Taunt. 884; Long v. Hitchcoch, 3 Ohio, 275. But material modifications of the rules of the common law relating to the abatement of actions have been made by the statute in this State.

The 39th section of the code provides that an action does not abate by the death of a party if the cause of action survive. Subsequently in the code title twelve is devoted to-the subject of “causes of actions which survive, and abatement of actions.” It contains but two sections. One (sec-398) provides what causes of action shall survive in addition to those that survive at common law. All such actions, it would seem, viewed in the light of the 39th section, do not abate by the death of either party. But the other section of that title (sec. 399) provides that “No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.”

This section does not enlarge the number of causes of action which survive where no action has been commenced. But if the action is pending, for whatever cause it, prevents its abatement by the death of either party, unless it be an action for one of the causes enumerated in the section, and as to them it does not abate, except by the death of the defendant. It seems to have been the purpose of the section to provide that the defendant in no case whatever should gain a case by the death of his adversary, although if the plaintiff’s case be one of those enumerated he may be defeated by the death of the defendant.

It is urged that the word “which” in the last clause relates to that immediately preceding, and embraces only an action against a justice of the peace, and that the other actions enumerated abate on the death of either party. But it seems to us, if that was the legislative intent, it would have been expressed in terms more appropriate for that purpose. We think a different purpose is too clearly evinced to admit of the strained construction claimed. The word “which” in the last clause too plainly relates to the word “action’ preceding the causes of action enumerated, and embraces them all in the same category. Speculations as to the reasons for the enactment will afford us little aid, for we shall encounter as many difficulties upon the construction claimed as upon the other. Whatever may have been the reasons that induced the enactment of the 399th section of the code, we regard it conclusive of the question that an action for slander does not abate by the death of the plaintiff while the action is pending.

Did the court err in refusing to charge the jury as requested by the defendant ?

The first proposition requested to be given, was, in substance, that no recovery could be had but for a single utterance of the words charged in the petition, and that the damages therefor could not be increased by reason of speaking the words at other times. The petition alleges, that the slan derous words were spoken on the fifth day of April, 1865, and at other times between that date and the commencement of the suit, on the thirty-first day of October following. No motion was made, as authorized by the statute, to make the petition more specific and definite, nor to state separately the causes of action. On the trial, evidence was introduced, without objection, to prove the speaking of the word.-charged on the fifth day of April, and at various other times afterwards before the commencement of the action. ' Eacl of these utterances were relied upon as a ground of recovery, as much as if they had been separately stated, as distinct causes of action, and a future action thereon was as effectually barred thereby as if they had been stated and numbered as separate causes of action. The court could not, therefore, exclude all the slanderous language charged except that uttered at one time, as a ground of recovery, or for the purpose of enhancing the amount of the damages, as requested by the defendant.

The proposition embraced in the second charge requested, was, in substance, that a physician, called to examine the ailment of an unmarried female patient, who, on examination believes her to be pregnant, and the symptoms are such as to reasonably induce that belief, is not liable in damages for giving it as his opinion that she is pregnant. This proposition was too general. It omitted the material qualification, that the opinion must be given to a person who is reasonably and properly entitled to it, in the ordinary coursé of his professional business. A physician is no more protected from liability for his slanderous statements, on the ground merely that he believes them to be 'true, than other persons. Indeed, the fact of his being a physician, in cases-of this kind, should rather be a ground of caution than of license in the expression of his opinions, except under such circumstances that they may be regarded what are termed privileged communications. They cannot be regarded as-such, unless made in good faith, and the “ relation between the parties by whom and to whom the communication is-made is such as to render it reasonable and proper that the information should be given.” [Per Selden, J. in Lewis v. Chapman, 16 N. Y. 874.] There was, then, no error in refusing to charge as requested.

It is urged that the court erred in the charge to the jury in regard to the evidence of a repetition of the words charged in the petition after the commencement of the action. It is-clear from the charge, as viewed by a majority of the court, that the court excluded all such evidence as a ground or foundation of recovery in the case. The court told the jury that they could look to that evidence “ only as bearing olithe question of malice and the degree of damages.” It is-regarded as apparent from the connection in which this-clause is used, that they relate only to the question of malice as bearing upon the words charged in the petition, and that the damages would be affected only as this evidence affected the degree of malice which prompted their •utterance ; and it is thought that the jury could not have-been misled by this part of the charge so as to give damages for the slanderous words spoken after suit brought, or to give them any effect as to damages further than they affected the degree of malice in the utterance of the words-that were the ground of the action or recovery. Although the charge is not so full and clear on this point as to relieve-it of all doubt, still it is not regarded, by a majority of the court, to be manifestly erroneous. On this point I differ with my brethren. I think this part of the charge, without qualification or limitation, taken in connection with the very broad- and general charge on the subject of damages, was mislo-tding, and left the jury to infer that the damages might be-enhanced by reason of the actionable words proved to have been spoken after the action was commenced. I content myself, however, with a reference to the following authorities. Letton v. Young, 2 Met. (Ky.) 558 ; Scott v. McKinnish, 15 Ala. 662; Fisher v. Patterson, 14 Ohio, 418; Stearns v. Cox, 17 Ohio, 590 ; Van Derveer v. Sutphin, 5 Ohio St. 293 ; and Greenl. Ev. sec. 418.

It does not appear from the record that any evidence was given to show that the words charged to have been spoken were true, nor tending to show that they were only expressions of professional opinion to persons properly entitled thereto ; the charge, therefore, upon the implication of malice from the falsity of the words, and the evidence rebutting malice and in mitigation of damages, though meagre, is not erroneous, and, in the absence of any request for a more full and explicit charge on these points, will not justify a reversal of the judgment.

It is urged that the court erred in charging the jury that, “in estimating the damages you also have a right to take into consideration the standing of the parties, and the pecuniary ability of the defendant to respond.” The objection is made to the last clause relating to the pecuniary ability of the defendant.

Upon the question here made, the authorities are conflicting. The language used by the court is substantially that of the judge in charging the jury in Stevens v. Handley, (Wright’s Rep. 121) ; and perhaps the charge is sustained by the weight of authority. Bennett v. Hyde, 6 Conn. 24 ; Case v Marks, 20 Conn. 248 ; Adcock v. Marsh, 8 Ired. 360 ; Karney v. Paisley, 13 Iowa, 89 ; Humphries v. Parker, 52 Maine, 502 ; Hosley v. Brooks, 20 Ill. 115 ; Lewis v. Chapman, 19 Barb. 252 ; Fry v. Bennett, 4 Duer, 247. But much doubt is cast upon the correctness of the proposition assumed, by the following cases : Myers v. Malcolm, 6 Hill, 292; Palmer v. Haskins, 28 Barb. 90; Ware v. Curtledge, 24 Ala. 622 ; Morris v. Barker, 4 Harrington, 520. The true rule may be that the pecuniary condition of the defendant may be considered for the purpose of showing his standing in the community, to enable the jury to determine how much the plaintiff has been injured, rather than the defendant’s ability to respond in damages.

But we do not feel called upon to determine the question in this case, 'for there is nothing in the record to show that the defendant was prejudiced by the charge given. It may have been in his favor for aught that appears, on account of his poverty. At most, so far as shown by the record, it was a mere abstract proposition, having no bearing on the case, and therefore affords no sufficient ground for the reversal of the judgment.

It is also claimed that the court erred in proceeding to trial without disposing of the demurrer to the second defence. But after that demurrer was filed the defendant took leave to amend, and filed an amended answer as to that defence, which was not demurred to by the plaintiff. Everything that was available to the defendant under the first answer was eqally so under the amended answer. The defendant lost nothing by the demurrer being undisposed of. His amended answer rendered it unnecessary.

On the whole case, a majority of the court are constrained to hold, that there is no error apparent on the record before us» It follows that the judgments of the courts below must be affirmed.

Welch, C. J., and White, McIlvaine and West, JJ., (concurred in the judgment of affirmance.  