Mauk v. Brundage

1. A' preliminary question. A question was made by defendants in error at the oral hearing with respect to the sufficiency of the petition in error in this court. This pleading avers the rendition of judgment by the circuit court in favor of defendants in error and against plaintiff in error, and adds: “A transcript of the docket and journal entries whereof, together with the original papers and bill of exceptions, are filed herewith. There is error in said record and proceedings in this, to-witThen follow eight specific assignments of error applicable only to the proceedings of the court of common pleas. A ninth assignment is in these words: “And there are other errors prejudicial to the plaintiff in error which are manifest on the face of the record,” and then a prayer that said judgment be reversed, and that plaintiff be restored to all things he has lost by reason thereof. Voluntary appearance to this petition in error was entered by defendants in error without objection, and none was made to it until the oral argument.

It is insisted that, inasmuch as there'-is no direct averment that *123tlit- circuit court affirmed tbe judgment of the common pleas, and no direct allegation of error in the judgment of the circuit' court,, there is no pleading here- for this court to act upon. Certainly such indifference to form and correctness in pleading is not to be commended. But, considering that the record brought' up and referred to includes what is lacking in the statement of the petition as to the rendition of judgment by the circuit court', and considering the general allegation of other errors in- the record, and further considering the lateness of the objection, and that no prejudice to defendants in error can possibly have resulted from the irregularity, we have concluded that it does not require at our .hands a dismissal of the cause.

2. As to the testimony. Many objections are made by plaintiff to the action of the trial court', a few only of which do we find it necessary to notice. In considering the merits of the case it is important to understand that it is t'he preamble only which is-charged as libelous; the resolution itself is not assailed. In regard to this preamble plaintiff complains that the trial court refused t'o allow evidence offered by him on the part of one Dr. Eger, a member of the board, to show that, at the time the resolution was being considered by the board, he (Eger) said to the board that the preamble was false; that he (witness) was with Dr. Mauk in those eases and he used proper care, and that if they passed the resolution with the preamble attached they would get into trouble. The evidence was clearly competent and unless t'he error was cured the ruling was certainly a prejudicial error. It is claimed that it was cured because t'he same witness, when on the stand afterward, was interrogated as to all the conversation which occurred at the time of the meeting of the board when the preamble and resolution were being considered, and testified fully, both in chief and in cross-examination, respecting the conversation- which occurred then between himself and the other members of the board. That this cured the error is denied on the authority of Reynolds v. Tucker, 6 Ohio St., 516, and it' is urged that the holding in that case rules the ease at bar in favor of the plaintiff. We thfnV it does not. In the case cited the party objecting, and whose objection was sustained, subsequently offered to go info the inquiry *124with tlio same witness, which Was declined by the other party and the testimony was not given. In the present case the inquiry was ■fully pursued by both parties and the plaintiff had the. benefit of the testimony. It is not 3iecessary to overrule the case of Reynolds v. Tucker, but the principle should not be extended. This holding we believe to be in consonance with the universal practice throughout the state.

It is further insisted that the trial court erred in admitting expert testimony on the part of defendants to show that death might result- to a woman in childbirth from blood poisoning by negligent treatment on the part of the physician who had shortly before been 'attending other patients affected by blood poison and other infectious diseases, there having been no testimony given tending to show that plaintiff had treated such cases of blood poison,etc.,' nor that he communicated such disease to his patients. This, point would be well taken if the defense had been justification, for then the defendants, to maintain the issue, would have been required to introduce Testimony to prove the truth of the libelous words. But as the 'defense was .simply that defendants had reason to believe the charge true, ’and did so believe, it was not incumbent upon them to show its actual truth, but they were properly permitted to prove if they could that' they believed the charge true, and that if that belief had been well grounded that the serious consequences charged would have been the natural result. Whether this would have been competent evidence at common law we need not inquire inasmuch as our statute; Section 5094, specifically provides that "in every cáse the defendant may prove any mitigating circumstances, to reduce the amount of damages.” The evidence tended to show goo^ faith and the absence of'malice, and thus to mitigate damages, and was therefore competent without first making proof of the' truth of the charge. Testimony having been given on the part of defendants, by Dr. Reamy, that a physician having due regard to the health a,nd life of his patient should not attend and treat an obstetrical case while attending upon a case of diphtheria unless imperative necessity demanded it, another attendant not being obtainable^ the plaintiff in rebuttal sought to show, by- Dr. Barnhill, that a physician might have .due regard to the health *125aiid life of an obstetrical patient by treating her while attending a case of diphtheria -by properly disinfecting himself, and that such practice is eminently proper and is considered good practice. The testimony was excluded. This testimony tended to rebut that given by Dr. Beamy, and its exclusion was error.

3. The charge. In the main the charge is a clear and correct statement of law as applied to the theory of the case adopted- and folio we;! by the learned trial judge. But we think that the theory was wrong and will endeavor to point out some of the errors appearing.

The preamble charges a degree of carelessness on the part of the physician referred to amounting almost to criminal negligence. To say the least, it was calculated to injure the physician in his profession by tending to prevent his obtaining employment, and thus to deprive him of the emoluments which pertain to his calling. No argument cart be needed to show that the act charged as done by the physician, if believed by the community to be true, worked substantial harm. The preamble', therefore, was libelous per se. Eollcard’s Starlde on Slander, 68 3 Townsend on Slander, Sec. 182; 18 Am. & Eng. Ency. Law, 866, 942; Pratt v. Pioneer Press Co., 35 Minn., 251; Hayner v. Cowden, 27 Ohio St., 292. Under the general rule of the common law that one shall have a remedy for every injury, the plaintiff here should have a remedy for the Injury done him unless there are other rules of law, or some controlling considerations of public policy, which take the case out of the rule. The contention is that the preamble was issued under the performance of a public duty, and hence was privileged. The American rule, as held in Smith v. Howard, 28 Ia., 51; Hoar v. Wood, 3 Metc., 193, and McLaughlin v. Conley, 127 Mass., 316, is that, in order to be privileged, the statement must be pertinent and material to the matter in hand. To be pertinent and. material it must tend to prove or disprove the point to be established, and have substantial importance, or -influence in- producing the proper result. In other words, the statement must be necessary to a full presentation and in that sense essential to the accomplishment of the object sought. Now the result to be reached in the present instance was the order providing for the conduct *126of physicians in the village. To reach this result, however imminent the doty of the board to pass and publish a proper resolution t'o correct the evil which it was assumed existed, it could not be at all important to charge negligence on the part of any physician. Not being essential, or even important, that the board should undertake t'o !ix the blame on any particular person, it follows that the preamble was not a privileged communication, and that those who passed and published it assumed the responsibility as individuals, and could not shield themselves by merely showing that they acted as members of the board, and. that' the order itself was a proper one. Whether or not the occasion gives the privilege is a question of law for the court, for unless there is a privileged occasion, the publication of defamatory matter is legally malicious, it being a case of a wrongful act intentionally done without just cause or excuse; that is, in the absence of a justifiable occasion for the publication, malice is but an inference of law, and should not be left as a question of fact for the jury Folkard’s Starkie, Sec. 674; Bromage v. Prosser, 4 B. & C., 247. And the main legal question in the case, turning as it did upon a proper construction of the entire publication in connection with the pleadings, it was the duty of the trial court to construe the publication and give the correct rule to the jury. It follows that -the burden assumed by the plaintiff under the pleadings was simply to show the publication by defendants (which in fact was not denied in the proof), and that the'plaintiff was the physician referred to, and understood by the community to be such physician. On such showing he was entitled to recover at least such compensatory damages as were attributable to 'the publication. It was error, therefore, for the court to submit to the jury the question whether or not' the preamble was libelous, and whether or not it was privileged.

Respecting damages, the court, after defining compensatory and exemplary damages,- said to the jury: “To find exemplary or smart money damages you must find that all ■ the defendants against whom you may find a verdict, if you do find a verdict, had actual malice as I liave defined t'o you. That of course does not affect the question of compensatory damages but simply those that would *127be fonad upon actual malice.” If by this it was intended to instruct the jury that if they found that plaintiff was entitled to recover, they might find, if the proof justified it, actual malice on the part of some and hence award exemplary damages against them and compensatory damages only against the remainder, the expression is not clear. On the other hand, if it was intended, as we think it-was, to instruct that in no event could compensatory damages be awarded against' some and exemplary damages against others, then we think the instruction incorrect. Perhaps the question is not without difficulty, but it would appear practicable to allow a recovery of an amount' against all as compensatory damages, and a further amount against some as exemplary damages, (and such verdict would be just' if the evidence warranted it), and it would not seem impracticable to so shape the verdict as to bring about this result’.

Further along the court said to the jury: “You may, depending upon how you find the facts, return a verdict if the plaintiff has made out his case, against one or part or .all of them, in other words against whom you find plaintiff h'as made out his case, and your verdict would be as to the others, no cause of action; or if you find that the plaintiff has not made out' his case, under the rules that I have given you, your duty would be to return a verdict of no cause of action to all defendants.” This instruction was faulty because the rules before given the jury, or some of the essential ones, were faulty as hereinbefore shown. The plaintiff was entitled to a direct charge to the effect that if the plaintiff had, by a preponderance of the evidence, sustained his claim that he was the physician intended by the preamble, and that the preamble was. published by defendants as charged, he was entitled to recover.

In the concluding paragraph the court said to the jury this: “Evidence has been allowed to go to you, gentlemen, touching the financial standing of certain of the defendants; that evidence goes to you, not for the purpose of affecting your verdict, but simply for the purpose of showing you the standing of the defendants in the community in which they live, that you may consider that fact, along with the other proofs in the ease, as to what effect the *128statements of any of these parties may have had upon the plaintiff.” The phrase “not for the purpose of affecting your verdict” was at least unfortunate. If the evidence was not in any wise intended to affect the verdict it should not have been received. It was, however, competent for just what the court appears to have had in mind, viz.: As bearing upon the influence the defendants may have had in the community, and the importance which the people of the community would naturally attach to their utterances.

Upon the whole record we conclude that the plaintiff did not have a fair trial. The judgments of both courts will be reversed and the cause remanded for further proceedings according to law.

Reversed.