De Pew v. Robinson

• Decision Date: 19 April 1884
• Docket Number: 11,154
• Citation: 95 Ind. 109
• Parties: De Pew v. Robinson
• Court: Indiana Supreme Court

95 Ind. 109

De Pew v. Robinson

No. 11,154

Supreme Court of Indiana

April 19, 1884

From the Noble Circuit Court.

A. A Chapin and R. P. Barr, for appellant.

L. W Welker and H. G. Zimmerman, for appellee.

OPINION

Best C.

This was an action of slander brought by the appellee against the appellant.

The complaint consisted of four paragraphs.The first, second and fourth alleged, in substance, that the appellee was then, and had for a long time been, a practicing physician in Noble county, Indiana, and that appellant, at said county, during said time, charged him, in the presence and hearing of others, with being "nothing but a G-d d----d abortionist," thereby imputing to him the offence of causing the miscarriage of women when not necessary to preserve life, to his damage, etc.

The third averred, in substance, that the appellee then was, and had for a long time been, a practicing physician in said county, and the appellant, for the purpose of injuring him, in a certain conversation in said county, had during said time, in the presence and hearing of divers persons, of and concerning the appellee as a physician, spoken the following false, slanderous and defamatory words: "You G-d d----d son of a b----, look at those you professed to cure you killed; they are in their graves," thereby meaning that the appellee was ignorant and unskilful, and was guilty of malpractice in his profession, to his damage, etc.

A demurrer to each paragraph of the complaint was overruled; an answer in denial and in justification was filed; a reply, trial, verdict and judgment for $ 300.A motion for a new trial was overruled, and these rulings are assigned as errors.

The appellant insists that the language mentioned in the first, second and fourth paragraphs of the complaint, is not actionable per se, and, therefore, neither of these paragraphs was sufficient without the proper colloquium, etc.

Our statute makes it an offence, punishable by fine and imprisonment, for any person to prescribe or administer to any pregnant woman, or to any woman whom such person supposes to be pregnant, any substance whatever, or to employ any instrument or other means, with intent to procure a miscarriage, unless such miscarriage is necessary to preserve life.Section 1923, R. S. 1881.

Our statute also provides that whoever deposits in any post-office of this State, etc., any instrument or medicine for procuring abortion, or whoever prints or publishes any account or description of any apparatus for procuring abortion or miscarriage, shall be fined, etc.Sections 1997, 1998, R. S. 1881.

It thus appears that the Legislature has employed the words "miscarriage" and "abortion" as synonymous terms, and that the offence of procuring a miscarriage as defined by statute is the crime of abortion.This being true, we think to charge any one with being an "abortionist" is to charge him with the commission of this offence, and therefore the language is actionable per se.This charge was calculated, as we think, to induce the hearers to believe that the appellee had committed the crime of abortion, and this was sufficient to render the language actionable per se.Drummond v. Leslie,5 Blackf. 453; Townshend Slander, section 117, n. The demurrer was, therefore, properly sustained.

The third paragraph was clearly sufficient.The language employed in charging the appellee with ignorance and malpractice in his profession was actionable per se, and there was, therefore, no error in overruling the demurrer.Townshend Slander, section 103;3 Sutherland Damages, 657.

The motion for a new trial embraced several reasons.These will be noticed in the order of their discussion.The first is that the court excused a juror who was otherwise competent, because he was a witness in the cause.This was a matter very much in the discretion of the court.Besides, it does not appear that the appellant was injured, and, therefore, this ruling does not constitute an available error if erroneous.

The next reason for a new trial was the refusal of the court to allow the appellant to testify to a...