Stepp v. Croft , 18 Pa. Super. 101 ( 1901 )

Opinion by

Beaver, J.,

This was an action of slander brought by the plaintiff, a physician, against the defendant for a slander affecting his moral and professional character, the details of which were circulated by the defendant in the community in which the plaintiff lived and practised his profession. The defendant did not seek to justify, nor did he deny the fact that he had circulated the slanderous story but endeavored to mitigate the damages by showing that the story had been told him by a reputable person and that the name of the author was given at tlxe several times when he repeated it. As to this there was contradictory testimony. The plaintiff assumes, in the history of the case, in some of the assignments of error and in his argument, that the slanderous story, of which the plaintiff complains, was started by himself in several conferences which lie had with brother physicians as to what was best to be done in regard to a letter which he believed to be a forgery, in which the immorality and criminality which were the basis of the slander related by the defendant were alluded to. The assumption of the plaintiff in this regard, however, was not based upon the facts. The conference between the plaintiff and his brother physicians, as testified to by them, was not as to this story but as to the author of the letter in which it was alluded to, and what was best to be done, as to the alleged forgery.

The facts do not bring the case within the rulings of Pease v. Shippen, 80 Pa. 514, in which it is held that “ under the general issue, in slander, the defendant may prove, in mitigation of damages, that when the words were uttered, a general rumor or report existed in the neighborhood that the plaintiff was guilty of the offense charged. If these suspicions and reports originated with the plaintiff herself, it was material in lessening the damages.” The plaintiff had the benefit of the testimony of the physicians with whom the plaintiff consulted. As bearing upon this question, the defendant assigns for error the so-called refusal of the court to admit an offer as to the testimony of one of these witnesses. The name of the witness is not given in the offer or in connection with the specifications of error. We infer, however, that it relates to the testimony of Dr. Caldwell. The court, however, did not exclude his testimony. It was admitted in'full and the court assisted in bringing out all the facts of which the doctor had knowledge and it was only after his knowledge had been exhausted and he declared that he knew nothing more, that the court put a stop to the examination. The trial judge simply prevented the witness from being tortured and led. The question, concerning which the controversy arose, had been asked and answered and was, in addition, leading, and for these reasons the court refused to allow it to be repeated.

The person who utters a slanderous story cannot hide himself behind the person who communicated it to him, whether the original author or not. If the author be responsible and his name be communicated at the time the story is repeated, that fact can be used in mitigation of damages, but it is not a justification. The fact as to whether or not the defendant communicated the name of the author is assumed by the defendant to be undisputed. Two of the principal witnesses of the plaintiff, however, deny that the defendant gave any authority for the story which he detailed to them.

The sixth, seventh and ninth assignments of error do not require special comment. There is nothing erroneous in anything therein complained of.

In the eighth assignment the following paragraph in the charge of the court is assigned for error: “ The defendant could set up, if he desired, a plea of justification and show that these words are true: that would relieve the defendant from any responsibility in the case. It is for you to say whether or not these words are true.” There was no allegation on the part of the defendant that the story circulated by him was true and there was, therefore, nothing to submit to the jury upon that question, but the defendant was not in any way injured thereby. The plaintiff could have complained of it, if the verdict had been for the defendant, but we fail to see how the defendant’s case could by any possibility have been injured thereby.

The tenth assignment of error separates one sentence from its context. If the following sentence had been quoted in connection with it, it would have shown that the court referred to the knowledge of reputation rather than to the personal knowledge of the individual. In no event, however, could the defendant be harmed by it, for all his witnesses who testified as to character said they were personally acquainted with the plaintiff.

We have read the charge very carefully with reference to the eleventh assignment of error. It is without any foundation whatever. The court read the testimony of two of the plaintiff’s witnesses but, in connection with it, read that of the defendant who had testified in regard to what he had told them. Throughout the entire charge there is apparent not only the utmost fairness on the part of the court but a manifest and persistent effort to eliminate from the minds of the jury any feeling of bias or prejudice.

The only serious question in the case arises under the fourth assignment of error. The defendant’s first point for charge was: “ The plaintiff in this case has not shown that he suffered any special injury by the loss of patients and patrons in his profession and business and, having failed to trace any injury to the wrong of the defendant, he can recover no special damages hi this case.” This was answered as follows: “ I do not quite understand this point. Where the charges that are claimed to have been made charge a criminal offense that can be punished by indictment, the law makes such words actionable in themselves, and in that case it is not necessary to prove special damages; but where a man has made charges against another that are not criminal, then he must prove special damages, before he can recover. With this explanation, we affirm this point.” The point, as an abstract question of law, is correct and required an affirmative answer. It had no application, however, to the present case. No special damages were claimed in the plaintiff’s statement. There was no testimony whatever in regard to special damages. The court, in the general charge, had stated that the words complained of contain a charge of a heinous crime which would in itself be slander, without proof of special damages. The question of special damages was, therefore, nowhere in the case and it was probably for this reason that the court made the qualified explanation as to not understanding the point. The qualification, taken in connection with the charge of the court, in regard to general and exemplary damages, as well as to there being no evidence of special damages, relieves the answer of the difficulty which would otherwise be found in the qualification. We cannot see that the defendant suffered in any way thereby. This does not and is not to be regarded as modifying or limiting in any way what we held in Leitz v. Hohman, 16 Pa. Superior Ct. 272, where a similar point was refused. The jury evidently believed the plaintiff’s witnesses and found that the defendant was guilty of the slander with which he was charged. This being so, the amount of the verdict is by no means extravagant — indeed it is quite the reverse — in view of the slander which charged upon a young physician two of the most serious crimes of which a member of his profession can be guilty.

Upon a consideration of the whole case, we can find no error of which the defendant has any right to complain. The assignments of error are all overruled.

Judgment affirmed.