Weltmer v. Bishop
| Decision Date | 24 December 1902 |
| Parties | WELTMER et al. v. BISHOP, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 171 Mo. 110 at 118.
Appeal from Bates Circuit Court. -- Hon. W. W. Graves, Judge.
Reversed.
W. C Scarritt, W. M. Williams and M. T. January for appellant.
(1) Courts do not look with favor upon charlatans. Richard v Judd, 15 Abb. Rep. 184. Weltmer's business comes within the definition of a common fraud. Barr v. Baker, 9 Mo. 850; Thompson v. Cohen, 127 Mo. 215; State v. Nevell, 1 Mo. 248. It is held not libelous to call a person who practices medicine without full medical qualifications a quack or impostor, for the law only protects lawful employments. Collins v. Carneigie, 1 A. & E. 695, 3 N. & M. 703. Words are not actionable on the theory that they touch one in his business, profession or occupation where his business, profession or occupation is not a legal one. 19 Am. and Eng. Ency. Law, p. 947; Hunt v. Bell, 1 Bing. 1; Morris v. Longsdale, 2 B. & P. 284; Trummer v. Hiscock, 27 Hun (N. Y.) 364; Harris v. Burley, 8 N.H. 216. (2) If a communication is prima facie privileged, the plaintiff can not recover without proof of actual malice. Bigelow on Torts, p. 52; Railroad v. Richmond, 4 L. R. A. 280; Starkie on Libel and Slander, sec. 351; Finley v. Steele, 159 Mo. 299. (3) When a man challenges public criticism by drawing attention to himself by advertising a new method of treatment, he and his method may be criticised, and such criticism is quasi privileged and, if believed to be true, is not actionable. Starkie on Slander and Libel, secs. 255, 256; Odgers on Libel and Slander, p. 49; St. James Military Academy v. Gaiser, 125 Mo. 517; Press Co. v. Stewart, 119 Pa. 584.
Francisco & Clark and Scott & Bowker for respondents.
The question is, under the testimony in this case, was the jury authorized to return a verdict finding that respondents were doing substantially what they advertised to do, in the treatment of diseases and that their business was a legitimate one and not a fraud? If there was, then the court ought not to disturb the finding of the jury on this proposition. In a matter of this kind the best evidence of whether or not respondents were able to and did do for their patients what they claimed they could do, is the testimony of the patients themselves. They certainly ought to know better than anyone else whether or not respondents' system was a sham and a fraud. It would not be a matter of guesswork with them. It would not be a speculation over which is the best system or theory for the treatment of disease. The record in this case shows that respondents introduced over fifty witnesses at the trial, of persons who had been treated by the respondents both by personal and absent treatment for different diseases. They testified they had been benefited or cured of the disease for which they had been treated. The testimony shows most of them to have been intelligent, representative citizens in the communities in which they lived. Most of them testified that prior to going to respondents, they had been treated by regular physicians without result. Their testimony shows them to have been unbiased, honest, and without any interest in this case other than to tell the exact truth. If their testimony is to be believed, and the jury certainly had the right to believe it, then respondents did effect cures substantially as they advertised to do.
Plaintiffs sue as partners in trade to recover damages for an alleged libel of their business. They recovered a judgment for $ 750 and the defendant appeals. The case comes to this court because a constitutional question is involved.
The petition alleges that the plaintiffs are engaged in the business of magnetic healing and had been so engaged for more than two years at the city of Nevada, and that large numbers of people had been coming to them from abroad to be treated by the plaintiffs for diseases; that defendant wrote and caused to be published in a newspaper an article in which the plaintiffs were called "miserable charlatans" and in which statements were made concerning their business which were false, libelous and malicious. The article is set out in full in the petition, but under the view we have taken of the case we deem it unnecessary to copy it in this statement, or to say of it more than that if the plaintiffs' business was legitimate, and if the statements were false, and if the article referred to the plaintiffs, it was libelous.
The answer admitted the authorship and publication, alleged the truth of the statements, that it was not intended to refer to plaintiffs in particular but to a large class that were engaged in the business of so-called magnetic healing, that the business was a fraud practiced on the public and that defendant deemed it his duty to expose the fraud, and wrote the article in good faith and without malice. The court on motion of plaintiffs struck out all of the answer except that part admitting the publication and pleading its truth.
Upon the trial the evidence both for plaintiffs and defendant showed as follows: The plaintiffs, who were men without the pretense of scientific learning, and who possessed only to a limited degree even the rudiments of education, were engaged in business at Nevada which they called magnetic healing. They employed for chief assistants three men who were also unlearned in any science and of little common education, and in addition to these a large number of female typewriters. They advertised very extensively in the chief cities of the United States and in foreign countries. In their advertisements they professed to possess miraculous power to heal all diseases to which human beings were liable, without medicine and without surgery; that to them had been committed a startling revelation whereby all ailments are dispersed as if by magic; that they had cured patients thousands of miles away and could cure thousands in an instant; that they exerted the same powers that Jesus Christ exerted to cure diseases nineteen hundred years ago. By far the greater number of their patients were at a distance and the only communication with them was by letter; those they proposed to cure, no matter what the disease, and though thousands of miles away, by a mysterious influence of the mind of the healer over that of the patient. The chief direction in the letter to the distant patient was that at a certain hour in the day he should dismiss all disturbing thoughts and bring his mind into a passive condition to receive the influence from the mind of the healer, who, at that same hour in Nevada, would bring his mind to exert the mysterious influence desired. The business that the plaintiffs built up by these methods was indeed wonderful in respect of its magnitude; they were making a thousand dollars a day. People suffering with sickness and disease came by hundreds to Nevada to receive the magic touch of these men and many of them went away believing that they had been cured or benefited. But the great bulk of the business was through what they called their absent treatment, that is, by letter correspondence. Their patients of this kind numbered many thousands, and they were treated by the typewriters who alone read the letters coming from the absent patients and answered them. The answer to each was in the main a copy of a circular letter prepared by the plaintiffs and furnished the typewriters for that purpose. One of...
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