Mount v. Welsh

• Decision Date: 06 July 1926
• Citation: 118 Or. 568,247 P. 815
• Parties: MOUNT v. WELSH ET AL.
• Court: Oregon Supreme Court

247 P. 815

118 Or. 568

MOUNT v. WELSH ET AL.

Supreme Court of Oregon

July 6, 1926

In Bank.

Appeal from Circuit Court, Clackamas County; Robert G. Morrow Judge.

Action by H. S. Mount against O. A. Welsh and others. Judgment for plaintiff, and defendants appeal. Judgment set aside, and judgment rendered for plaintiff.

Burnett J., dissenting.

Earle C. Latourette, of Oregon City, and E. B Tongue, of Hillsboro (E. B. Tongue, of Hillsboro, and Grant B. Dimick, and C. D., D. C. & Earle C. Latourette, all of Oregon City, on the brief), for appellants.

Ben C. Dey, of Portland (Dey, Hampson & Nelson and George L. Buland, all of Portland, on the brief), for respondent.

BROWN, J.

This action is prosecuted to recover damages for the publication of an alleged libel concerning the plaintiff, a physician and surgeon, by the seven defendants, also physicians and surgeons. Alexander De Ford was shot through the body and died 31 hours later at a hospital in Oregon City, where he was attended by Dr. O. A. Welsh, county physician, one of the defendants herein. Following the death of De Ford, his body was removed to Sellwood, Multnomah county, by his relatives who employed the plaintiff, Dr. Mount, to make a post mortem examination of the body for the purpose of ascertaining the cause of death. Thereafter the body was removed to Oregon City, Clackamas county, and the coroner of that county impaneled a jury and proceeded to hold an inquest. Dr. Welsh testified as a witness before the coroner's jury, ascribing the cause of De Ford's death as "confluent pneumonia" following gunshot wound. The plaintiff was called as a witness, and testified that death was caused immediately by septic peritonitis, resulting from the gunshot wound. The coroner went to Dr. Mount's office and procured from his bookkeeper a statement of his bill for making the post mortem examination. That official approved the claim and thereafter transmitted it to the county court of Clackamas county, where it was allowed.

The conflict in the testimony of the two physicians and surgeons before the coroner's jury seems to have stung Dr. Welsh to the quick. Welsh testified that, after the inquest, an undertaker whispered into his ear that the plaintiff was about to graft the taxpayers of Clackamas county out of a fee for services performed for others, and that the undertaker proceeded to point out to Dr. Welsh his duty in the premises as it related to the taxpayers, and particularly to the medical profession. According to the story told by Dr. Welsh, in an effort to save the good name of the medical profession and the funds of the taxpayers, he penned to the county court the following protest against the allowance of Dr. Mount's claim:

"Oregon City, Oregon, December 2, 1920.

"To the Honorable County Court of Clackamas County, Oregon:

"We, the undersigned taxpayers of your county, and licensed physicians and surgeons of Oregon City, Oregon, do hereby protest against the paying of an autopsy fee to Dr. H. S. Mount for an autopsy on Alexander De Ford, for the following reasons:

"Presumably, as stated by him, the autopsy was performed at the instance of his relatives and information was confidential.

"Upon request by the coroner for his testimony, he insisted upon all information being confidential until promised by the coroner that he would O. K. his autopsy fee into the county court. Then he willingly testified that the death of De Ford was due to septic peritonitis.

"Furthermore, he, either through gross misrepresentation or gross ignorance, stated the man died from septic peritonitis (blood poisoning), when his temperature was normal, never going above 99 degrees Fahr., and then only the first two times taken after admission to the hospital. No person ever succumbs to a septic condition as soon as 31 hours after the infection, and then only after a more or less prolonged abnormal rise in temperature or fever.

"We do not believe that the county's money should be paid for such misleading testimony, or that it should be spent paying the services already contracted or paid for by other parties; in other words, we do not believe such attempted graft and profiteering should be countenanced, as it reflects upon the medical profession when allowed to continue unchecked."

"O. A. Welsh.

"M. C. Strickland,

"A. H. Huycke,

"W. Ross Eaton,

"C. H. Meissner,

"C. A. Stuart,

"Geo. E. Stuart, M. D."

After the preparation of the above writing by Dr. Welsh, he carried it to the several offices of the various physicians and surgeons whose names are appended thereto. He made to each of them an exposition of his diagnosis of the De Ford case, explained to each the nature of Dr. Mount's testimony before the coroner's jury, and to some of them at least he repeated the undertaker's admonition concerning the collection of the Mount bill from the county. Following his representations, Dr. Welsh secured the signatures of his six codefendants to the alleged libel. He then published the contents of the writing by placing it of record in the county court. Thereafter the plaintiff sued the seven physicians for damages. The defendants, answering, as a first defense pleaded the truth of the statements and charges contained in the alleged libelous writing. For a second defense, they averred that the matter contained in the writing was published upon a privileged occasion, to the county court, and in good faith, and without malice. The trial resulted in a verdict for the plaintiff. The defendants, appealing, made many assignments of error, which are grouped in their brief under 25 headings.

We will first take up the contention that juror Adam Beil was disqualified because of the relationship of physician and patient, and because of his views on the merits of the controversy. Touching his qualifications, Beil testified on his voir dire that he had an opinion concerning the case that it would require evidence to remove; that he had formed his opinion from what the neighbors had said; and that he retained that opinion at the time of his examination. Counsel for defendants put the following question to the juror:

"Q. Do you think, Mr. Beil, that you could lay aside that opinion, dismiss it from your mind entirely, and go into the jury box and decide this case justly and fairly upon the evidence produced here to-day, and the law as given you by the court? A. Yes, sir.

"Q. And you would do that if accepted? A. Yes, sir."

Beil further testified:

That he had been acquainted with Dr. Mount for nearly two years; that Dr. Mount had been his family physician during that time and would be his physician now in case of illness in his family.

"Q. You feel very friendly toward Dr. Mount? A. Well, not any more than to any other doctor. He is family physician, you know, and I * * * take stock in him."

When the court sought to obtain from the witness an expression in relation to approaching the case without a previous opinion, he testified:

"Well, I think I could. I could decide the case on the evidence and the instructions of the court. It would not bother me what I did.

"The Court: But would your opinion bother you in deciding the case? * * * A. I don't think so."

The determination of a juror's competency is primarily a question for the trial court. An opinion formed or expressed by a juror upon the merits of the cause from what he may have heard from his neighbors, together with newspaper reports, is not, of itself, sufficient to sustain a challenge. State v. Armstrong, 43 Or. 207, 216, 73 P. 1022; State v. Megorden, 49 Or. 259, 266, 88 P. 306, 14 Ann. Cas. 130; State v. Brumfield, 104 Or. 506, 209 P. 120.

"The court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially." Or. L. § 123.

Again: The test of a juror's disqualification is the probability of interest, prejudice, or bias, as determined by the court's application of his judicial knowledge to the facts of the particular case. Rowe v. State, 15 Ga.App. 660, 84 S.E. 132.

That a jury shall be composed of competent persons, and that a competent juror means one who is impartial and stands indifferent both as to the parties and the cause to be tried, is an elementary principle in trial by jury. 35 C.J. § 348, "Juries"; 16 R. C. L. 261. The fact that the statute provides certain grounds for challenge does not preclude a challenge and the exclusion of a juror on other grounds. Thompson and Merriam on Juries, 176; 16 R. C. L. 276; 35 C.J. § 427, "Juries." This is a rule of general application.

The relationship of physician and patient is not set down by section 122. Oregon Laws, as forming grounds for challenge for implied bias; nor will actual bias be implied from the mere relationship of physician and patient. But, in the case at bar, we have an intelligent, strong-minded juror, with an opinion that the plaintiff should prevail. That opinion coupled with the fact that the plaintiff is the juror's family physician, and with the further fact that the case involves the learning and skill of his physician, should, as a general rule, disqualify the juror. However, in view of the record, the court's denial of the defendants' challenge can avail them nothing. The rule in this jurisdiction is announced by an opinion of Mr. Justice Burnett in State v. Humphrey, 63 Or. 540, 128 P. 824, where he clearly states that, until a defendant's peremptory challenges are exhausted, he is not in a position to complain of the overruling of his challenge for cause to any particular juror who afterwards serves on the panel. We are aware of numerous authorities to the effect that, if the trial court has erred in overruling a challenge for cause, the defendant is not bound to cure the court's...