Crane v. Darling

• Decision Date: 03 May 1899
• Citation: 71 Vt. 295,44 A. 359
• Parties: CRANE v. DARLING.
• Court: Vermont Supreme Court

44 A. 359

71 Vt. 295

CRANE

v. DARLING.

Supreme Court of Vermont. Caledonia.

May 3, 1899.

Exceptions from Caledonia county court.

Action for slander by E. M. Crane against S. E. Darling. There was a judgment for plaintiff, and defendant excepts. Affirmed.

The words were alleged to have been spoken of and concerning the plaintiff in his professional capacity as a physician and with the innuendoes stated in the opinion of the court. The words were: "The Currier boy died from the effects of iron which you injected into his nose. You killed the Currier boy by injecting iron into his nose. You killed that boy (meaning said Harry Currier). He died from hemorrhage of the nose and throat, caused by your injecting iron. You have been underhanded and dishonest in the means you have used to obtain patients ever since you went into practice. You have broken every rule of the ethical code of physicians in your practice. You are a dishonest, underhanded sneak."

Taylor & Dutton, for plaintiff.

Barber & Darling, for defendant.

ROWELL, J. Though not shown by the record, it is conceded in argument that the only question now made on the demurrer was not made below. This being so, the question cannot be raised thereunder here, for the reason given in State v. Preston, 48 Vt. 12. It is unnecessary, therefore, to consider whether the order to replead without prejudice to the demurrer is effective to reserve the benefit of it to the demurrant.

The declaration contains three counts, and alleges that, before and at the time of speaking the words declared upon, the plaintiff was, and ever since has been, and still is, a physician, and that the words were spoken of and concerning him as such, and of and concerning his treatment of a certain Currier boy. It appeared in evidence that the plaintiff was a graduate of the medical department of the University of Vermont at the time he treated the boy, and was then practicing medicine at Hardwick, and had a license to practice from the board of censors of the Vermont Medical Society, but that his license had not been recorded in the Medical Register, as required by statute, but was recorded therein before the speaking of the words. The statute is that if a person practices medicine, and is not duly authorized by a certificate issued and recorded as therein provided, he shall be fined. V. S. § 4638. Therefore the defendant claims that the plaintiff could not be slandered in his profession by words spoken after his certificate was recorded, concerning his treatment of the boy before it was recorded, for that the actionable quality of the words must be determined as of the time of that treatment, at which time he was not a physician, as he had no right to practice, and therefore had no professional character as a physician, and that his subsequent authorization did not change his legal status as to prior acts. But the jury has found, under a charge not excepted to on this point, that the defendant meant to charge the plaintiff with general professional ignorance and incompetency as a physician, and used the case of said boy merely as illustrative of the charge; and also meant to charge him with general professional misconduct and dishonesty in the means habitually resorted to by him to obtain practice. This meaning certainly touched the plaintiff in his profession at the time the words were spoken, and therefore makes them actionable if they are susceptible of that meaning, which is the one ascribed to them in the innuendoes; and that they are susceptible of it we have no doubt The court limited recovery to the first and second counts, which declared upon words spoken at Taylor & Dutton's office. The third count, on which recovery was denied, declared upon a part only of what the defendant...