Cruikshank v. Gorden

• Decision Date: 14 January 1890
• Citation: 23 N.E. 457,118 N.Y. 178
• Parties: CRUIKSHANK v. GORDEN.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 178

23 N.E. 457

CRUIKSHANK

v.GORDEN.¹

Court of Appeals of New York, Second Division.

Jan. 14, 1890.

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he was called to attend defendant's child, but, his treatment being unsatisfactory, he was, at defendant's instance, superseded, on the 25th of November, by Dr. 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 has 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 right 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 I can, 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 him: ‘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. I 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. J. Gaynor, for appellant.

Wm. Rosebault, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

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 Barb. 484; Bergold v. Puchta, 2 Thomp. & C. 532; Lynde v. Johnson, 39 Hun, 12; Southsee v. Denny, 1 Exch, 196; Townsh. Sland. & Lib. (3d Ed.) § 193; Folk. Starkie, Sland. § 88; 15 Amer. Law Rev. 573; 19 Amer. Law 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 the 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...