
    William J. Cruikshank, Resp’t, v. William Gordon, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    1. Slander—Physicians—Words actionable per se.
    Statements made concerning a physician imputing a general ignorance of medical science, incompetency to treat diseases and a general want of professional skill, are actionable without proof of special damages. So held, where defendant had advised others to get another doctor, that plaintiff was no good, that he would not have him doctor a dog; that he almost killed his child and that if -he had not got another doctor the child would have died.
    ‘2. Same—Plea of truth in mitigation —When may be considered on
    QUESTION OF DAMAGES.
    Where a plea of the truth of the statement is pleaded in mitigation in bad faith and for the purpose of injuring the reputation of the plaintiff, and no evidence is given to sustain such plea, the fact may be considered by the jury in aggravation of damages.
    
      3. Same—Evidence.
    It is not error to allow plaintiff to show that defendant repeated the slanderous charges on occasions other than those set forth in the complaint.
    Appeal from a judgment of the general term of the second judicial department, which affirmed a judgment entered on a verdict.
    Since 1880 the plaintiff has been a practicing physician, and in November, 1883, he treated a servant employed in the family of the defendant, and afterwards treated his wife and children, and November 19, 1884, he was called to attend defendant’s child, but his treatment being unsatisfactory he was, at defendant’s instance, superseded on the 25th of November by Doctor John Griffin. On the 13th of April, 1885, the defendant paid the plaintiff for his services. In August, 1886, this action was brought to recover damages for words alleged to have been spoken by the defendant on six different occasions in respect to the plaintiff’s competency to practice as a physician. No special damages were alleged in the complaint or proved on the trial.
    A witness testified that defendant said: “ That Dr. Cruikshank had treated his child for malaria when she hadn’t the malaria at all; that he never should pay him a cent; and wound up by saying if he hadn’t employed another doctor, Dr. Cruikshank would have killed his daughter.” These words are alleged as the first cause of action.
    Another witness who had a sick child then being treated by the plaintiff, testified that defendant said to him: “ I had no xight to take Dr. Cruikshank, he would not, under any consideration take Dr. Cruikshank for a case, that he was no good, he was only a butcher; so I asked him, why ? he said his child was sick and he almost killed her, if he didn’t call another doctor in; and he told me if I didn’t get another doctor right away he would kill my child, that I would be the murderer of my child; he asked me ‘what sickness is it? ’ I told him he had diphtheria. He said: ‘Oh, that is nothing at all, he would just as well take a case of diphtheria as he would drive nails in wood.’ That he was no good; that wherever he went he would tell that he was no good. He asked me if I syringed the child’s throat I said no. He said every doctor gives a prescription and if the child has diphtheria he gives a syringe ;that Dr. Cruikshank was only practicing on my child, that he was killing my child.” These words-are alleged as the plaintiff’s second cause of action.
    The husband of the witness last referred to testified that defendant said to him: “ I should take another doctor, he would not have him for a dog, he wouldn’t have him doctor a dog, he says, ‘ if I were you I would go for another doctor right off because he is nothing but a butcher, and I shall do all the harm for him because he doctored a child of mine and if I hadn’t got another doctor in he would have killed her.” These words are alleged as the third cause of action.
    A brother of the last witness testified that defendant said to jhim; “ Well, I told Mrs. Snyder to get another doctor, if she don’t she will be the murderer of her own child; he doctored in my own family and if I hadn’t got another doctor my child would have died.” These words are alleged as the fourth cause of action.
    ■ Another witness testified that defendant said: “ He (plaintiff) did attend in my family but I had him for Mattie, and he nearly killed her; if I hadn’t let him go he would have killed her. Í wouldn’t have him to a dog, he is no good.” These words are alleged as the fifth cause of action.
    A witness testified that the defendant said to him, “ I had better tell Mrs. Chapin if she wants to get better she had better get another doctor, that he would not have him attend a dog; that he had him attend his child and if he had not got another doctor his child would not have lived; I afterwards went to Mrs. Chapin and told her.” These words are alleged as the sixth cause of action.
    
      Wm. Bosebault, for resp’t; Wm. J. Q-aynor, for app’lt.
    
      
       Affirming 15 N. Y. State Rep., 897.
    
   Follett, Ch. J.

Many of the statements testified to by the witnesses, and which the jury must have found were made by the defendant, imputed, not a lack of skill in a particular case, but general ignorance of medical science, incompetency to treat diseases and a general want of professional skill. Such statements made in respect to a practicing physician are slanderous and actionable without proof of special damages. Secor v. Harris, 18 Barb., 425; Fitzgerald v. Redfield, 51 id., 484; Bergold v. Puchta, 2 T. & C., 532 ; Lynde v. Johnson, 39 Hun, 12; Southee v. Denny, 1 Exch., 196; Towns Libel & S., (3 ed.) § 193 ; Folk. Stark., § 88; 15 Am. L. Rev., 573; 19 Am. L. Reg., N. S., 465.

The point is made that defendant’s statements all referred to the plaintiff’s treatment of defendant’s child, or that, at least, it was a question of fact for the jury to determine whether they were not made solely with reference to that particular case. Much of the language proved to have been spoken did not refer to the treatment of the child, but related to the plaintiff’s general competency and fitness to practice as a physician, and so it is quite unnecessary to consider whether statements disparaging the treatment of a particular case are or are not actionable without proof that special damages were caused by the words spoken.

The defendant denied in his answer the speaking of the words charged in the complaint, and alleged in mitigation that he described to three persons the plaintiff’s unskillful treatment of his child, but that the words were not spoken maliciously, and further alleged: “ In further mitigation of damages defendant says that plaintiff is not sufficiently nor ordinarily skillful nor competent as a physician, and has no reputation as a competent physician, and' never had.” The defendant neither gave nor offered any evidence in support of this allegation. In response to a request to instruct thé jury that they might consider this allegation, and the defendant’s failure to attempt to prove it, upon the question of damages, the court read the allegation and said: “ If you believe the imputation in the answer upon the plaintiff’s professional competency is unproved, and was inserted maliciously and without probable cause, you may consider such imputation in aggravation of damages. They had a right to plead that issue. If they fail on it, and it was inserted in good faith, that would not tend to enhance the damages. But it remains on record, and if you find that it was put in wantonly and without cause, then you may consider that an aggravation of damages.” To this instruction the defendant excepted, and now insists that it was erroneous, citing, in support of his contention, Klinck v. Colby, 46 N. Y., 427.

In that case it was held that a plea of justification and the failure of the defendant to attempt to sustain it was insufficient evidence to warrant a finding that a prima facie privileged communication was composed and published maliciously: and it was further held that: “ In an action for libel, where, under an answer proper to that end, the defendant has shown that the communication was privileged, his further answer of justification by the truth of the charge, though without proof given to sustain it, may not be taken into consideration of evidence of malice and in aggravation of the damages.” In reaching these conclusions the learned judge made some observations which have led to the understanding that the court intended to lay down a general rule that no unsustained plea of justification could, under any circumstances, be considered by a jury in determining the amount of damages which a plaintiff might recover in an action for defamation of character. But that it was not the intention of the court, or of the learned writer of its judgment, to lay down a rule so broad as has been claimed, is made apparent, we think, by reference to the judgment rendered six years later in Distin v. Rose, 69 N. Y., 122. In that case, an action for slander, the defendant charged the plaintiff with being a prostitute, and, among other defenses, justified the charge in his answer; but on the trial he failed to sustain his plea of justification, though he gave evidence tending to show that the plaintiff lived with a man as his wife with knowledge that he had a wife living. The court was requested to charge : “ There was nothing in the defendant’s answer to enhance the plaintiff’s damages.” To-which the court answered: “That is for the jury to say.” An exception was taken, the validity of which was considered by the court. In considering this exception the court said: “The words proved to have been spoken imputed unchastity by the most offensive epithets. The answer alleged in express terms that the charge was true, and then specified facts that she had lived with a man as his wife, knowing that he had at the time another wife living. If there was an entire failure of proof to sustain the charge, and the jury believed that it was inserted in the answer wantonly or maliciously, and without probable cause for believing it true, they might consider it upon the question of damages, and it was right, therefore, to decline, as matter of law, to charge that they could not so consider it. There was no intimation in this refusal that in this case they ought to só consider it, and the charge on. the contrary intimated that the facts proved ought to be considered in mitigation of damages.”

Five of the judges who sat in Klinck v. Colby, including the writer of the opinion, sat in the case last cited, and we cannot-assume that the judgment in the first case was unknown to the court, or that it was regarded as in conflict with its decision in the latter case. The same rule was laid down in Bennett v. Matthews, 64 Barb., 410, and its existence was not denied in Doe v. Roe, 32 Hun, 628, but it was held inapplicable to that case because the evidence tended strongly to show that the defendant did not interpose the justification maliciously, but in good faith. Before the Code the rule was vigorously stated and applied in Fero v. Ruscoe, 4 N. Y., 165. It has been uniformly held, before and since the Codes, that when a defendant pleads, in justification of the breach of his promise to marry, that the plaintiff has become unchaste, and on the trial makes no attempt to prove his plea, the fact may be considered by the jury in assessing the damages. Southard v. Rexford, 6 Cow., 255; Kniffen v. McConnell, 30 N. Y., 285 ; Thorn v. Knapp, 42 id., 474.

None of the cases cited are decisive of the question under consideration, for, as is urged by the learned counsel for the appellant, the allegation quoted from the answer falls short of a justification, and is at most but a plea in mitigation. It is urged that pleas in mitigation being authorized by the Code cannot be considered on the question of damages. The interposition of pleas in justification is authorized by law; nevertheless, as we think we have shown, courts have quite uniformly held that if they were interposed in bad faith, the jury might consider the fact on the question of damages. The authorization by the Code of pleas in mitigation is not a license for their interposition in bad faith, and for the purpose of injuring the reputation of the plaintiff, and when they' are interposed for that purpose, the fact may be considered by the jury.

Two physicians, who were sworn in respect to other questions, were permitted to testify that the plaintiff was reputed to be a competent and skillful physician. This was objected to by the defendant, but no ground having been stated the exception is not available.

No error was committed in permitting the plaintiff to show that between the date when the cause of action arose and the date when the action was begun the defendant repeated the charges on occasions other than those set forth in the complaint. Nor was there any error committed in permitting the plaintiff to show that defendant had attempted to hire one of his witnesses to leave the country.

The judgment should be affirmed, with costs.

All concur; Bradley and Haight, JJ., in result.  