Foster v. Scripps

• Decision Date: 22 October 1878
• Citation: 39 Mich. 376
• Court: Michigan Supreme Court
• Parties: George B. Foster v. James E. Scripps

39 Mich. 376

George B. Foster v. James E. Scripps

Supreme Court of Michigan

October 22, 1878

Submitted June 13, 1878

Error to Superior Court of Detroit.

Civil action for libel. Plaintiff brings error.

Judgment reversed with costs, and a new trial granted.

Griffin & Dickinson for plaintiff in error. Every written publication concerning a man which as a necessary or proximate consequence, causes him pecuniary loss, is prima facie libelous, Weiss v. Whittemore, 28 Mich. 375 or brings shame and disgrace on him, makes him an object of hatred, ridicule and contempt, Fonville v. M'Nease, 1 Dudley 303, or tends to disgrace or degrade him in society State v. Jeandell, 5 Harring. 475, or makes him liable to punishment, or infamous, White v. Nicholls, 3 How. 266; Armentrout v. Moranda, 8 Blackf. 426; Dexter v. Spear, 4 Mas. 115; or if it tends to provoke a breach of the peace, Torrance v. Hurst, Walk., 403; Newbraugh v. Curry, Wright, 47; Townshend on Slander and Libel, § 20 et seq.; it is actionable to falsely charge a physician with gross ignorance or unskilfulness, Sumner v. Utley, 7 Conn. 257; Secor v. Harris, 18 Barb. 425; Johnson v. Robertson, 8 Port. 486; Camp v. Martin, 23 Conn. 86; Gove v. Blethen, 21 Minn. 80; Turrill v. Dolloway, 17 Wend. 436; In re Moore, 63 N. C., 397; Wilson v. Fitch, 41 Cal. 363; 6 Bac. Ab., 215; publications are not privileged unless honestly made, without malice, and on probable cause or proper inquiry, Lanning v. Christy, 30 Ohio St., 115: 17 Amer. L. Reg., 204; Hastings v. Lusk, 22 Wend. 421; Barber v. St. Louis Despatch Co., 5 Cent. L. Journal, 361; Clark v. Molyneux, 36 L. T. R. (N. S.), 466: 9 Chic. L. News, 333; Smith v. Tribune Co., 4 Biss. 480; Quinn v. Scott, 22 Minn. 456; Rearick v. Wilcox, 81 Ill. 77; Littlejohn v. Greeley, 13 Abb. Pr., 41; Purcell v. Sowler, 1 C. P. Div., 781; Cooley's Const. Lim., 431; malice may be inferred from the language of a libelous statement and from extrinsic circumstances, Suydam v. Moffat, 1 Sandf. 459; Lowber v. LeRoy, 2 id. 202; Cheritree v. Roggen, 67 Barb. 124; Pattison v. Jones, 8 B. & C., 578; Gott v. Pulsifer, 122 Mass. 235.

Henry W. Montrose and C. I. Walker for defendant in error. It is not libelous to charge a physician with neglect or want of skill or proper practice in a particular case, where the charge is made in spoken words, Townshend on Libel, § 194; Poe v. Mondford, Cro. Eliz., 620; Foot v. Brown, 8 Johns. 64; Garr v. Selden, 6 Barb. 416; Tobias v. Harland, 4 Wend. 537; Swift v. Dickerman, 31 Conn. 285; Johnson v. Robertson, 8 Port. 486; Secor v. Harris, 18 Barb. 425; statements as to official conduct are privileged, Henwood v. Harrison, L. R. 7 C. P., 625; Harle v. Catherall, 14 L. T. (N. S.), 801; Odger v. Mortimer, 28 id. 472; Davis v. Duncan, L. R. 9 C. P., 396; Kelly v. Sherlock, L. R. 1 Q. B., 686; Kelly v. Tinling, L. R. 1 Q. B., 699; Wason v. Walter, L. R. 4 Q. B., 73; Turnbull v. Bird, 2 Fost. & Fin., 508; Gathercole v. Miall, 15 M. & W., 318; Palmer v. Concord, 48 N. H., 216; malice cannot be inferred from the publication of a libelous statement, but must be proved, Edwards v. Chandler, 14 Mich. 471; Folkard's Starkie on Slander and Libel, § 670; Townshend on Libel, § 388; whether there is evidence of malice is a question for the court, Spill v. Maule, L. R. 4 Exch. 232; Taylor v. Hawkins, 16 Ad. & El., 321; Laughton v. Bishop, 4 Privy Council App., 508-9: 4 Eng. 171.

Campbell, C. J. Marston and Graves, JJ., Cooley, J. concurred.

OPINION

Campbell, C. J.

Plaintiff sued defendant for a libel published in the Detroit Evening News, attributing to him gross professional misconduct, resulting in the death of a child. The defense was rested on the claim that the defendant had a right to publish the article as privileged, the plaintiff being one of the city physicians.

The article in question having referred to the action of the city authorities in providing for general vaccination, stated that the Board of Health had ordered the use of pure bovine virus, and that the operation should be performed in a certain way which excluded the use of an instrument known as a trochar. It then proceeded as follows:

"Most of the physicians acted under the instructions of the Board of Health. Several, who thought they could make more money by ignoring the rule, did so. Notably Dr. Foster, the physician of the second district, who preferred to use the "trocar" with which he was enabled to perform vaccinations at the rate of 100 a day, instead of the 20 or 30 which would have been possible with the proper instrument. He has been several times called to account for his departure from the rules of the Board, but has persisted in his course, arguing that the "trocar" was a proper and safe instrument to use. At last

A TERRIBLE INSTANCE

has occurred, which completely refutes all the doctor's arguments. There is no doubt in the mind of any one who has taken the trouble to investigate the case but that James Connelly, the infant son of Mr. Connelly, residing at 162 Seventh street, died last night from the effects of an operation performed upon him some two weeks ago by Dr Foster. The operation was vaccination; the instrument, the trocar. Mr. Connelly had three children, aged five, two, and one year respectively. Up to about two weeks ago they had been in comparatively good health. Then came Dr. Foster with his trocar and vaccinated them. Soon after all of them were sick, not alone with vaccine fever, but, according to the opinion of Dr. F. A. Spaulding, the physician who afterwards attended them, also with the scarlet fever. Where did the children get this latter disease? There was none of it in the neighborhood. The children were very young and were always kept in or about the house. The fact that the three were taken simultaneously with the same disease, and that it came on simultaneously with the vaccine fever, would seem to prove conclusively that the scarlet fever had been inoculated into their systems by Dr. Foster's trocar, which had probably a few hours before pierced the arm of some scarlet fever patient in some remote part of the city.

A HOME DESOLATED.

One of the children died Monday night. Another now lies at the point of death, and the third may yet die, thus leaving the parents childless.

The common council should immediately take this matter in hand and cause a thorough investigation to be made into all the circumstances of the case, and if Dr. Foster has been guilty of malfeasance, suspend him from office and cause him to be prosecuted for the same."

After proving the publication of this and some similar articles, and the responsibility of defendant, plaintiff rested. Defendant introduced considerable testimony concerning the course of the common council and Board of Health, and the different methods of vaccination, and the acts and opinions of plaintiff. The court shut out all testimony offered by plaintiff on these subjects, and upon some other matters which can only be explained by the charge which took the whole case away from the jury, and directed a verdict for defendant, without giving any reasons therefor.

The only conceivable ground is the privileged character of the publication, which, as the case stands, would make it lawful, whether malicious or not, and whether founded on reasonable belief or entirely baseless.

We have not been able to discover on what theory the court below based any such charge as was given.

That the article if not privileged, was libelous, is beyond question. The authorities on the non-actionable character of spoken words, have no necessary bearing on the character of written or printed libels. The doctrine is elementary that written articles which in any way tend to bring ridicule, contempt or censure on a person are libelous, and are actionable unless true or privileged. This article not only traced the death of one person and the sickness of others to plaintiff, but laid the blame on his willful misconduct upon sordid motives. It was not claimed on the trial, and the plea disclaims the truth of the principal charge, that the trochar was used whether its use was or was not improper.

We are therefore not required to discuss the somewhat extraordinary proposition that the city Board of Health are authorized to determine ex cathedra the methods of medical treatment.

The question is simply whether such false and damaging charges as have a necessary tendency to ruin the reputation and business of a medical man, may be made without responsibility to legal redress, simply because he happens to be a city physician.

It is not and cannot be claimed that there is any privilege in journalism, which would excuse a newspaper when any other publication of libels would not be excused. Whatever functions the journalist performs are assumed and laid down at his will, and performed under the same responsibility attaching to all other persons. The greater extent of circulation makes his libels more damaging, and imposes special duties as to care to prevent the risk of such mischief, proportioned to the peril. But whatever may be the measure of damages, there is no difference in liability to suit.

Allowing the most liberal rule as to the liability of persons in public employment to criticism for their conduct in which the public are interested, there certainly...