Opinion
Argued February 13, 1903
Decided March 24, 1903
Clarence J. Shearn for appellant.
George L. Robinson for respondent.
The legal effect of the publication complained of is the same as if the plaintiff had been the only physician referred to and, in view of the answer which mentions him by name, as if reference had been made to him eo nomine.
The article described the plaintiff as a physician and said, in substance, that he was a jackass in the guise of a doctor. It further charged that the medical school which gave him his diploma as a doctor of medicine graduated him, a brute, "to care for us in sickness," and a ghoul, "to mutilate us when dead." It criticized, by suggestion, the educational system which permitted such a savage to retain his diploma and urged the public authorities to arrest him as a degenerate graduate and to give him at least an installment of his deserts. It spoke of him as one of the doctors employed to care for the patients in a charity hospital, who hauled from his coffin, while still in the hospital awaiting burial, the dead body of a patient, "white-headed and withered and worn with life's battles," and strung him up by the neck in front of Dr. Stewart's residence, "a grisly object swinging in the wind," and danced around it and thus insulted both the living and the dead.
Too much of the article was true, but all was not, yet the plaintiff was besmirched by it all, not as an individual, but as a physician. It does not say simply that Alfred Bornmann was guilty of the outrage, or even that Doctor Bornmann was thus guilty, but it coils its sentences around him as a physician by describing him as a jackass disguised as a doctor, a brute graduated to care for the sick, a ghoul graduated to mutilate the dead, a degenerate graduate deserving arrest and punishment, a savage unworthy to retain his diploma, who, although engaged as a doctor to treat the patients in a hospital, maltreated the corpse of an old man, who had died there, by stringing it up in a public place and dancing around it.
It is not the individual, but the doctor, the savage with a diploma, the brutish, ghoulish, degenerate graduate, who is held up to public scorn by the strong language of the article. The plaintiff was attacked in his professional capacity, because he was denounced as a physician, with a diploma, but unworthy of it, a graduate guilty of an atrocious wrong, a doctor, but nevertheless a jackass, a savage, a brute, a ghoul and a degenerate. While on duty as a doctor at the hospital he is said to have invaded its dead house and inflicted a monstrous indignity upon the body of a gray-haired old man who had been his patient but a short time before. His calling as a physician permeates the editorial and appears in nearly every sentence. As I read the entire publication, a degenerate graduate means a degenerate doctor, and an institution that graduates brutes and ghouls means one that turns out doctors who are brutes and ghouls like the plaintiff.
Was it error, under these circumstances, for the trial court to hold, as matter of law and the Appellate Division to unanimously sanction the holding, that the plaintiff was assailed in his professional capacity?
The article imputed to a physician the ignorance of a jackass, the brutality of a savage and the fiendishness of a ghoul, which presumptively injured his professional reputation. Is a jackass in the guise of a doctor, a savage unfit to retain his diploma as a physician, a graduate of a medical school who is a brute, a ghoul and a degenerate, fit to properly practice his profession? Did not such charges necessarily reflect upon his capacity and tend to lessen public confidence in him as a professional man? "If the words be of probable ill-consequence to a person in a trade, or profession, or office" they are actionable per se. Is such a physician as the plaintiff is said to be worthy of employment? Would people be apt to engage him to enter their households and care for their sick? Did not the language used "touch" the plaintiff, that is, affect him, in his special character, more than it would a person in any other profession or calling?
To say of a minister that he is immoral, of a lawyer that he is an ignoramus, a drunkard or a cheat, of an architect or a teller of a bank that he is crazy, of a physician that he is a humbug, or a quack, or a butcher, or a blockhead, or a quack-salver, or an empiric, or a mountebank, or that he is no scholar, or that his diploma is worthless, has been held actionable per se, as touching the vocation. ( Krug v. Pitass, 162 N.Y. 154; Moore v. Francis, 121 N.Y. 199, 204; Cruikshank v. Gordon, 118 N.Y. 178, 183; Sanderson v. Caldwell, 45 N.Y. 398, 402; White v. Carroll, 42 N.Y. 161; Tarleton v. Lagarde, 46 La. Ann. 1368; 26 L.R.A. 325; Clifford v. Cochrane, 10 Ill. App. 570; Cawdry v. Highley, Cro. Car. 270; Peard v. Jones, Cro. Car. 382; Allen v. Eaton, 1 Roll. Abr. 54; Doddart v. Haselfoot, 1 Viner's Abr. [S. a.] pl. 12; Southee v. Denny, 1 Exch. 196; Cooke's Law of Defamation, 18; 18 Am. Eng. Ency. [2d ed.] 961.)
The case before us comes within the principle of the cases cited and others referred to therein. While the plaintiff, in view of his own testimony, deserves little sympathy, he is entitled to his legal rights and to have such character as he had left after his foolish conduct protected from destruction by defamation.
The judgment should be affirmed, with costs.
Upon the trial the court charged the jury that the matter published was an untruthful statement in a substantial particular, and that it was spoken of the plaintiff "in relation to his profession and assailed him in his professional capacity, and that, therefore, it is libelous in and of itself." An exception was taken to so much of this charge as states that the writing was of and concerning the plaintiff in relation to his professional capacity.
Many statements published of an individual to some extent affecting his standing and reputation, only become actionable when special damages are alleged and shown; but when the publication tends to injure him in his profession or business, or to charge him with the commission of a crime, it becomes actionable per se. It will thus be seen that statements published tending to injure a person in his profession or business are an aggravation of the offense, and are ordinarily more heavily punished than where a statement is published concerning the individual. We incline to the view that both articles were libelous per se. Both charged the plaintiff with offenses under our Penal Code. It was a libel and misdemeanor to hang Dr. Stewart in effigy. (Sec. 242.) It was a felony to break into the dead house and remove a body therefrom for the purpose of hanging it in effigy. (Sec. 313.) It was also an offense to break into the dead house for the purpose of removing coffins. (Sec. 505.) The plaintiff, therefore, would be entitled to recover some damages unless the charges were true. It now appears that he was, in fact, guilty of a misdemeanor in taking part in the hanging of Dr. Stewart in effigy. It also appears that he was guilty of a misdemeanor, if not of a graver crime, in assisting in the breaking into the dead house and in the taking of the three coffins therefrom. He did not, however, as we have seen, take a dead body from the house. In so far as he has damaged his own character by the offenses that he has committed, he is without remedy and must suffer the consequences. He can only recover such damages as he has sustained by reason of the additional charge of which he was not guilty. This was the measure of the defendant's liability; but the jury, as we have seen, was permitted to include another element — that of injury to plaintiff's profession or business. In determining this question it becomes necessary to carefully review the articles published. The news article purports to give a detailed account of what transpired, and we discover nothing in it that is an attack upon plaintiff's skill or ability as a physician and surgeon. The reference in the editorial to the doctor who attended upon the child run over by a delivery wagon is an independent matter having no connection with the charge against the medical staff of the hospital of which the defendant was a member. It is true that the plaintiff with his associates are spoken of as ghouls, jackasses, brutes and degenerates. It is also true that if these words were spoken of and concerning the plaintiff's skill or capacity in his profession, damages would be recoverable for this injury; but we think that reading all of the statements in the articles together they very clearly disclose the purpose of the writer in using these expressions as applying to the transaction detailed, and not to the plaintiff's professional capacity, skill or ability as a physician. As applied to the plaintiff's conduct on the night in question they furnished a basis for no additional allowance by way of damages, for, adopting his own story of the transaction as given upon the witness stand, it was, to speak mildly, a most disgraceful affair meriting the condemnation of every law-abiding citizen. The libel upon the superintendent was bad enough, but this sinks into insignificance when we contemplate the injury that may result to the institution. A hospital, dependent upon the liberalities of the charitably inclined for its support, maintaining a staff of physicians who violate in the night the repository of their own dead, may be deprived of many liberal contributions that it otherwise would have obtained had it not been for such conduct.
We conclude that the charge, as made, was erroneous in the particular alluded to, and for that reason the judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., MARTIN and WERNER, JJ., concur with VANN, J.; GRAY and O'BRIEN, JJ., concur with HAIGHT, J.
Judgment affirmed.