Upon the trial the court charged the jury that the matter published was an untruthful statement in a substantial particular, and that it was spoken of the plaintiff "in relation to his profession and assailed him in his *Page 220 professional capacity, and that, therefore, it is libelous in and of itself." An exception was taken to so much of this charge as states that the writing was of and concerning the plaintiff in relation to his professional capacity.
Many statements published of an individual to some extent affecting his standing and reputation, only become actionable when special damages are alleged and shown; but when the publication tends to injure him in his profession or business, or to charge him with the commission of a crime, it becomes actionable per se. It will thus be seen that statements published tending to injure a person in his profession or business are an aggravation of the offense, and are ordinarily more heavily punished than where a statement is published concerning the individual. We incline to the view that both articles were libelous per se. Both charged the plaintiff with offenses under our Penal Code. It was a libel and misdemeanor to hang Dr. Stewart in effigy. (Sec. 242.) It was a felony to break into the dead house and remove a body therefrom for the purpose of hanging it in effigy. (Sec. 313.) It was also an offense to break into the dead house for the purpose of removing coffins. (Sec. 505.) The plaintiff, therefore, would be entitled to recover some damages unless the charges were true. It now appears that he was, in fact, guilty of a misdemeanor in taking part in the hanging of Dr. Stewart in effigy. It also appears that he was guilty of a misdemeanor, if not of a graver crime, in assisting in the breaking into the dead house and in the taking of the three coffins therefrom. He did not, however, as we have seen, take a dead body from the house. In so far as he has damaged his own character by the offenses that he has committed, he is without remedy and must suffer the consequences. He can only recover such damages as he has sustained by reason of the additional charge of which he was not guilty. This was the measure of the defendant's liability; but the jury, as we have seen, was permitted to include another element — that of injury to plaintiff's profession or business. In determining this question it becomes necessary to carefully review the articles *Page 221 published. The news article purports to give a detailed account of what transpired, and we discover nothing in it that is an attack upon plaintiff's skill or ability as a physician and surgeon. The reference in the editorial to the doctor who attended upon the child run over by a delivery wagon is an independent matter having no connection with the charge against the medical staff of the hospital of which the defendant was a member. It is true that the plaintiff with his associates are spoken of as ghouls, jackasses, brutes and degenerates. It is also true that if these words were spoken of and concerning the plaintiff's skill or capacity in his profession, damages would be recoverable for this injury; but we think that reading all of the statements in the articles together they very clearly disclose the purpose of the writer in using these expressions as applying to the transaction detailed, and not to the plaintiff's professional capacity, skill or ability as a physician. As applied to the plaintiff's conduct on the night in question they furnished a basis for no additional allowance by way of damages, for, adopting his own story of the transaction as given upon the witness stand, it was, to speak mildly, a most disgraceful affair meriting the condemnation of every law-abiding citizen. The libel upon the superintendent was bad enough, but this sinks into insignificance when we contemplate the injury that may result to the institution. A hospital, dependent upon the liberalities of the charitably inclined for its support, maintaining a staff of physicians who violate in the night the repository of their own dead, may be deprived of many liberal contributions that it otherwise would have obtained had it not been for such conduct.
We conclude that the charge, as made, was erroneous in the particular alluded to, and for that reason the judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., MARTIN and WERNER, JJ., concur with VANN, J.; GRAY and O'BRIEN, JJ., concur with HAIGHT, J.
Judgment affirmed. *Page 222