Hyperlawhypertext legal database Cruikshank v. Gorden 1 N.Y.S. 443

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Cruikshank v. Gorden

1 N.Y.S. 443 Court N.Y. Gen. Term Decision date 1888-05-14 English

Delivered by Barnard, P. J.

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p. 443
Cruikshank v. Gorden.
(Supreme Court, General Term, Second Department.
May 14, 1888.)

Headnote

1. Libel and Slander—Words Actionable per Se—Attributing Want of Skill-to Physician.
Utterances to different persons to the effect that plaintiff, a physician, was no doctor, that his treatment would kill a patient, and that persons employing him would murder their own families thereby, are actionable per se; as, if true, they would render plaintiff unworthy of employment in his profession.
3. Same—Justification Set Up in Answer—Consideration by Jury.
In an action for slander, the jury have a right to take into consideration the justification set up in the answer, if it appears from the evidence to have been set up wantonly or without cause.
3. Same—Damages—'When not Excessive.
In an action for slander, §1,600 damages are not excessive where there are numerous malicious utterances to different persons to the effect that plaintiff, a physician, was no doctor, that his treatment would kill a patient, and that persons employing him would thereby murder their own families; there being no proof of the truth of such utterances, and the words seeming to have been for the sole purpose of destroying plaintiff’s means of livelihood.
4. Same—Evidence—Proof of Malice.
In an action for slander, evidence is admissible showing a repetition, to other persons than those mentioned in the complaint, of words of the general import of those counted upon, to establish express malice, and to prove the extent of the injury.
5. Same—Evidence—Attempt to Prevent Attendance of Witness.
In an action for slander, evidence of a witness, who testified to one of the slanderous utterances, that, after commencement of the action, defendant offered him §1,000 to go to Canada to avoid testifying on the trial, is admissible, as it was virtually an admission of the speaking of the slanderous words.
Appeal from circuit court, Kings county; Edgar M. Gulden, Justice.
Action for slander, brought by William J. Cruiksbank against William Gorden. "Verdict and judgment for plaintiff for @1,600, and defendant appeals. Plaintiff’s complaint alleged, and the proofs showed, the following, among other, expressions used by defendant towards plaintiff: “Dr. Or uikshank would have killed my daughter if I had not discharged him. If you do not get another doctor, you will be your own child’s murderer. Dr. Cruiksbank almost killed my child. I would never risk a child in his care. Dr. Cruiksbank is no good. Wherever he goes, I will say he is no good. Dr. Cruiksbank is only practicing on your child. He is only killing your child. I wouldn’t, under any consideration, take Dr. Cruiksbank for a case. Dr. Cruiksbank is no good for a doctor. He is nothing but a butcher. I intend to do Dr. Cruiksbank all the harm I can. I wouldn’t have him for a dog. You had better tell Mrs. Chapin to get another doctor. If she does not get another
p. 444
doctor, she will never get better. I would not have Dr. Gruikshank attend a dog. I heard you were sick, and had Dr. Gruikshank to attend you, and I expected to hear of your death any day. Dr. Gruikshank is no kind of a doctor. I wouldn’t have him to doctor a cat or dog. You will never get better unless you take my advice, and get another doctor.” Defendant’s answer-denied generally the utterance of the slanders charged, admitted that he did ■speak to a number of persons about plaintiff, but alleged that the language used by him was not as charged by the complaint; pleaded in mitigation that plaintiff had been employed to treat defendant’s child, but that he treated it for “malaria, ” while it really was ill of another malady, and that, in consequence of this improper treatment, the child “grew steadily worse, and would have died, as the defendant believes,” if he had not summoned another physician; and, finally, “in further mitigation of damages, defendant says that plaintiff is not sufficiently nor ordinarily skillful or competent as a physician, .and has no reputation as a competent physician, and never had.” Defendant in his testimony denied having uttered any of the slanders charged and testified to, but offered no evidence to sustain the reflections made by him in his answer upon the reputation and competency of plaintiff, except the testimony of one witness as to an alleged mistake in diagnosing a case, which testimony was completely refuted. The court charged, inter alla, that if the jury believed “that the imputation in the answer upon plaintiff’s professional competency is unproved, and was inserted maliciously and without probable cause, you may consider such imputation in aggravation of damages.” On trial, plaintiff introduced evidence of slanderous utterances, of the same general import as those charged in the complaint, to^ other persons than to those .-therein mentioned. To this evidence defendant objected.
William, J. Qaynor, for appellant. W. M. Rosebault, for respondent.

The plaintiff is a physician. The complaint alleges various causes of action, based upon spoken words, charging the plaintiff with ignorance and unskillfulness in his profession. The complaint avers that the slanders were uttered with malice towards the plaintiff, and with the intent ■to injure him in his profession as a physician. The proof bears out the complaint fully. The utterances were numerous and to different persons, and were to the effect that plaintiff was no doctor, that his treatment would kill 'the patient, and that persons employing him would murder their own families thereby. The point taken that these words are not actionable per se is not, we deem, well taken. A charge made maliciously in respect to a vocation or ■trade of a person, which, if true, would render him unworthy of employment, is actionable per se. Kinney v. Wash, 3 N. Y. 177 . Humero us exceptions were taken on the trial to the admission of evidence showing a repetition of language of the same general import as that counted upon in the complaint. The evidence was proper. The repetition of the charge may be shown, and the circulation and publicity of these utterances, to establish express malice, and to prove the extent of the injury. Distin v. Rose, 69 N. Y. 122 . A wit-mess for the plaintiff testified to one of the slanderous utterances, and in a conversation with the defendant, after the papers in the action were served, in respect to the action, testified that defendant offered him $1,000 to go to Can.ada to avoid testifying on this trial. The real point of the evidence of this witness was an intent to induce the witness, by defendant, to “not remember. ” The offer was so woven in the narrative that it could not be detached, even if it was improper evidence of itself. It is difficult to conceive.of a case where an offer to suppress a witness is inadmissible. It was a virtual admission of the speaking of the slanderous words. The charge in respect to the right of the jury to take into consideration the justification or mitigation set up in the answer, if it appeared from the evidence to have been set up wantonly, and without cause, is justified in Distin v. Rose, 69 N. Y. 123 . The

p. 445
damages are not excessive. The charges are directed at the plaintiff’s profession,—are so numerous and personal as to indicate great malice. Ho proof is given to show their truth, and the case seems to show a malicious speaking of false words, addressed to the plaintiff’s competency as a physician, for the sole purpose of destroying his means of livelihood. The judgment should therefore be affirmed, with costs.

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