Kaplan v. Goodfried, 18100
| Decision Date | 21 June 1973 |
| Docket Number | No. 18100,18100 |
| Citation | 497 S.W.2d 101 |
| Parties | Dr. Martin R. KAPLAN, Appellant, v. Dr. Paul M. GOODFRIED et al., Appellees. |
| Court | Texas Court of Appeals |
James H. Miller, Flagg, Cooper, Hayner, Miller & Long, Dallas, for appellant.
Paul Shoop, Thompson, Knight, Simmons & Bullion, Dallas, for appellees.
Dr. Martin Kaplan, an osteopathic physician, sued Dr. Paul Goodfried, an orthopedist, and Mary Jane Ulrich, his secretary and receptionist, for alleged slanderous remarks made to a patient of Dr . Kaplan's who had been referred to Dr. Goodfried for an examination . Our questions are whether the trial court properly excluded evidence of a similar remark by Dr. Goodfried to another patient of Dr. Kaplan's three years earlier, and whether the statement by the secretary was privileged. We hold that the earlier remark by Dr. Goodfried was properly excluded and that the statement by the secretary was privileged. Accordingly, we affirm the trial court's judgment for both defendants.
Plaintiff Dr. Kaplan alleged that the slanderous statements were made to his patient R. A. Cooks, who was sent by the State Department of Public Welfare to Dr. Goodfried for an examination and report. Plaintiff's evidence supports the jury's findings that Dr. Goodfried told Mr. and Mrs. Cooks 'that Dr. Kaplan doesn't know what he is doing and should not be giving shots to Mr. Cooks,' and also told them 'that he should be going to Parkland Hospital and not to Dr. Kaplan where he is not receiving good care.' The jury further found, however, that Dr. Goodfried did not act with malice in making these statements.
The excluded evidence was the testimony of Danny Stansel, who followed Dr. Goodfried on the witness stand. Plaintiff had showed by the testimony of Dr. Goodfried that Stansell had been referred to him by Dr. Kaplan three years before the visit of the Cooks. Defendants' counsel brought out that Dr. Goodfried had no recollection of any conversation with Stansell but that he had written a letter to Dr. Kaplan thanking him for the referral. Dr. Goodfried also testified that he later went to Dr. Kaplan's home in response to an advertisement for the sale of an automobile and that on that occasion Dr. Kaplan reminded him that both had seen Stansell professionally. According to Dr. Goodfried, Dr. Kaplan offered him a drink and their relations were cordial.
On defendants' objection, Stansell's testimony was given in absence of the jury. He testified that Dr. Goodfried examined him and then suggested that he should go back to work. Stansell told him that both he and Dr. Kaplan thought something was wrong with him, and Dr. Goodfried then made a statement to the effect that Dr. Kaplan did not know what he was doing, was not even a medical doctor, and was 'just like all of those other damn D.O.'s, he will take your money, treat you and not do you a damn bit of good.' Plaintiff offered this testimony to prove malice on the part of Dr. Goodfried and also as corroboration of his making a similar statement later to the Cooks, but defendants' objection was sustained.
Plaintiff's first point urges that the excluded testimony was admissible on the issue of malice, which was material to overcome the physician's conditional privilege and as a predicate for exemplary damages. We hold that it was properly excluded for two reasons. In the first place, it was not admissible for one of the two purposes for which it was offered. Evidence offered for two purposes is properly excluded if inadmissible for one of the purposes stated. Singleton v. Carmichael, 308 S.W.2d 379 (Tex.Civ.App., Houston 1957, writ ref'd n.r.e.); 1 J. Wigmore, Evidence § 17 at 320 (3d ed. 1940). One of the purposes for which Stansell's testimony was offered was to 'corroborate' the Cooks' testimony concerning Dr. Goodfried's remark on the occasion in question, which Dr. Goodfried denied. It was not admissible for that purpose, since the rule is that when utterance of the alleged defamatory words is in issue, evidence of similar remarks on other occasions is not admissible to prove utterance of the words in question. Bird v. Huber, 179 Cal. 245, 176 P. 161 (1918); Kelley v. Paulsen, 162 Mich. 169, 127 N.W. 13 (1910); Keller v. Safeway Stores, 111 Mont. 28, 108 P.2d 605, 613 (1940); Malone v. State, 192 Wis. 379, 212 N.W. 879 (1927). Plaintiff cannot complain of the court's failure to admit the evidence for a limited purpose of showing malice, since he did not tender it for that limited purpose or request any limiting instruction. Cf. Kainer v. Walker, 377 S.W.2d 613 (Tex.1964).
In the second place, even if the evidence had been tender for that limited purpose, the trial court had discretion to exclude it on the ground that its probative force was slight and would have been more that offset by its prejudicial effect. It shed no light on whether Dr. Goodfried believed the statement the jury found the later made to the Cooks. Lack of belief in the truth of the conditionally privileged communication is one of the important factors in determining malice in a libel or slander case. International & G.N. Ry. v. Edmundson, 222 S.W. 181 (Tex.Comm'n App.1920, judgment approved); Mayfield v. Gleichert, 484 S.W.2d 619 (Tex.Civ.App., Tyler 1972, no writ). Neither did it indicate any personal ill will toward Dr. Kaplan, since at that time Dr. Goodfried had not met Dr. Kaplan. At most, it showed that Dr. Goodfried then had a low opinion of osteopaths as a group. On the other hand, Stansell's testimony would have been prejudicial on the disputed issue of whether Dr. Goodfried actually made similar statements to the Cooks on the occasion in question. It was also likely to increase the damages, since the jury might have had a tendency to include damages for the earlier defamation, or at least, to find greater damages for the second offense. Under these circumstances the judge had the responsibility of balancing the probative force of the evidence against its probable prejudicial effect, and his discretion in this respect ought not to be disturbed. 2 C. McCormick & R. Ray, Texas Law of Evidence § 1481 (1956); Model Code of Evidence, rule 303 (1942). The ruling here was well within the court's discretion, since Stansell's testimony concerned a remark made to him three years before the alleged statements to the Cooks, and before Dr. Goodfried's visit to Dr. Kaplan at his home. According to Prof. Wigmore, other defamatory statements may properly be admitted to prove malice, but the length of time between the evidential utterance and...
To continue reading
Request your trial
-
Burch v. Coca-Cola Co.
...sufficient importance to require protection of the honest communication of misinformation. Pioneer, 858 S.W.2d at 50 (citing Kaplan v. Goodfried, 497 S.W.2d 101, 105 (Tex.App.--Dallas 1973, no writ)). Accordingly, voluntary communications, in addition to communications in response to a requ......
-
Levine v. Steve Scharn Custom Homes, Inc.
...” Pioneer Concrete of Tex., Inc. v. Allen, 858 S.W.2d 47, 50 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (quoting Kaplan v. Goodfried, 497 S.W.2d 101, 105–06 (Tex.Civ.App.-Dallas 1973, no writ) ).The evidence established that the neighbors in the residential neighborhood where the con......
-
Weisberg v. London, No. 13-02-659-CV (TX 8/31/2004)
...S.W.3d at 286; Pioneer Concrete of Tex., Inc. v. Allen, 858 S.W.2d 47, 50 (Tex. App—Houston [14th Dist.] 1993, writ denied); Kaplan v. Goodfried, 497 S.W.2d 101, 105 (Tex. Civ. App.—Dallas 1973, no writ). Privilege is an affirmative defense. Denton Pub'g Co. v. Boyd, 460 S.W.2d 881, 884 (Te......
-
TRT Development Co. v. Meyers
...person. Pioneer Concrete of Texas, Inc. v. Allen, 858 S.W.2d 47, 50 (Tex. App--Houston [14th Dist.] 1993, writ denied); Kaplan v. Goodfreed, 497 S.W.2d 101, 105 (Tex. Civ. App.--Dallas 1973, no writ). Communications given voluntarily, as in this case, rather than in response to a request fo......