Johnson v. Robertson , 8 Port. 486 ( 1839 )

ORMOND, J.

— The judgment of the court below, sustaining the demurrers to the first, third, fourth, fifth, sixth, seventh and eighth counts of the declaration, cannot be sustained. The slanderous words charged in the four first counts of the declaration, are, in substance, “he (meaning the plaintiff,) has killed the child by giving it too much calomel;” which words, it is alleged, were falsely and maliciously spoken of the plaintiff as a physician, and in the way of h-,s profession and business, in his attendance upon the infant child if the defendant.

The only objection now made by counsel, to the counts which were demurred to, is, that the words are not slanderous. This is certainly incorrect, when the scandalous imputation affects the person accused, in his office, profession or business. An action of slander will lie, without averring any special damage; which is the form of the counts we are now considering. Scarcely any thing can be conceived, better calculated to injure a physician in his practice, than to acense him of killing his patients. The inevitable inference is, that he is grossly ignorant of his profession, or neglectful of his patients. If these words do not include a slanderous imputation, when spoken of a physician, it is difficult to imagine what words would be sufficient.

The remaining counts of the declaration, charged the defendant with having “ kil'ed the child ;” meaning, that the child, who was then dead, had been killed and murdered by the plaintiff. The words are slightly varied in some of the counts, but, in substance, they are the same. It is not alleged, that they were spoken of ■ the plaintiff as a physician.

To charge a person with having killed another, without any accompanying words, explaining or limiting the meaning of the words, imports an accusation of murder ■ —(See 6 Bacon, 207, and Chandler vs. Holloway, 4 Porter’s Rep. 17) — and are, of course, actionable.

The judgment of the court, therefore, sustaining the demurrers to each of the counts of the declaration, except the second, was erroneous.

The court also erred, in charging that the plaintiff could not recover damages, beyond the extent of the injury he had proven he had received by the slanderous charge.

It is true, as urged by the counsel for the defendant in error, that, in this action, the measure of damages is the extent of the injury received by the person slandered: but this he is not required to prove. When words are slanderous in themselves, the right to damages follows, as a consequence, from the speaking of the slanderous words; because, it is the inevitable tendency of slander, to injure the person slandered, in his reputation, profession, trade or business. It would frequently be difficult to prove any pecuniary injury from the slander, and always impossible to establish its full extent. Besides, the action is allowed not only to compensate for pecuniary loss, but to afford some redress for wounded feelings and prostrate reputation. Therefore, when words are actionable in themselves, the law implies damage.

The words being actionable in themselves, it was not necessary to lay special damage; but no evidence of special damage can be received, unless specially averred in the declaration. The averment, in the second count, that certain persons who are named, “ and divers other persons, who would otherwise have employed the plaintiff in the way of his said profession and business,” is not sufficient to authorise proof of special damage, by others than those specially named. But though the plaintiff may enhance the damages, by proof of special damage, it does not thence follow, that the jury are confined in estimating the damage, to the pecuniary loss proved to have been sustained. The jury may give such damages as will compensate the injured party, taking into consideration not only his pecuniary loss, but all the circumstances of'the case.

There was no error in the court’s refusing to permit a witness to be asked, whether he knew of any person refusing to employ the plaintiff, by reason of the words spoken. If the knowledge of the witness was derived from hearing such persons assign their reasons for not employing the plaintiff, it is open to the objection, of being hear-say testimony. If he inferred it from their conduct, they alone could explain the motives which influenced them. It is also obnoxious to the further objection, that it does not appear that the persons referred to, were those named in the declaration; and, if not, they could not themselves have testified.

The judgment must be reversed, and the cause remanded for further proceedings, in conformity with this opinion.

GQLDTHWAITE, J., not sitting' in this case.