(charging the jury.)
This is an action on the case brought by Arthur T. Cameron^ the plaintiff, a druggist, against Millord F. Corkran, the defendant,, a physician, to recover damages for slanderous words alleged to have been uttered by the defendant of the plaintiff in relation to the improper compounding of a prescription. The prescription was ordered by the defendant for the sick child whom he was attending, and was compounded and put up under the care and direction of the said plaintiff on the 23d day of January, A. D. 1895.
It is alleged and charged in the narr in this case, on the part of the plaintiff, that the defendant ordered a prescription to be put up for a patient, a young child, on January 23d, 1895, which said prescription the plaintiff,claims was well and skillfully put up; and that the defendant falsely and maliciously uttered the following words : “ That prescription has a mistake in it. The druggist has made a mistake. He don’t know his business anyhow,” with an innuendo that, by reason of the negligence and carelessness, and for want of skill on the part of the plaintiff, as a druggist, the said child was made ill from the effects of said.prescription.
In another count in the narr, the defendant is charged as maliciously and falsely uttering, in relation to the prescription, the following defamatory words : “No, this was not my mistake, it was the druggist’s mistake, you can see by the difference in the prescription that there is a difference in them, and that the whole thing was the druggist’s fault.”
The plaintiff contends that the words set forth and charged in the narr, as uttered and spoken were false and malicious, and by *174reason thereof he was greatly injured and damaged in his business, and he seeks in this action to recover damages for the loss he claims to have sustained.
The defendant says he is not guilty ; that the words uttered by him were such as are termed a privileged communication, and as such, were not said with any malicious motive or intent.
To recover in this case, the plaintiff must show to your satisfaction, by a preponderance of proof that the words in substance as charged were uttered with intent to wrong or injure; actual malice must be proved. All defamatory words spoken which occasion loss or damage, though not actionable in themselves, become so when special damage is. proved to have resulted from their utterance. Such is the law and to this you are to apply the evidence which has been offered.
Do you believe from the evidence offered in this case, that the defendant uttered in substance the words charged, with an evil intent to wrong the plaintiff? Did he utter the words knowing they were false? Were they uttered maliciously? How were these words uttered ; with express malice ? That must be proved to your satisfaction; it is neither implied nor presumed. It may be proved either directly or indirectly, from all the proof and circumstances surrounding the case, as stated in a late opinion by the Chief Justice in the case of Nailor vs. Ponder, 1 Marvel 408. Was the plaintiff injured by the proof adduced in this case, by the utterance of those words and did he thereby, suffer loss in his trade and business, if so there was actual or expressed malice. Does the evidence in this case satisfy you, that taking all the testimony offered there was an uttering of those words charged on the part of the defendant, knowing them to be false and untrue. If then you believe the plaintiff has satisfactorily proved these facts, he is entitled to a verdict at your hands.
The defendent, under the plea of not guilty, though still denying the uttering of the words charged, has set up the defense, that though he uttered the words charged in substance, he had a right *175to do so, because it was a privileged- communication, which defense, if proved constitutes a complete defense to this action.
It is for you then to determine from the evidence in this case? if the information imparted by the defendant was a privileged communication made bona fide without malice. “A communication made in good faith upon any subject matter, in which the party communicating has an interest, or in reference to which he has a duty, either legal, moral or social if made to a person having a corresponding interest or duty, is privileged, and the burden of proving the existence of malice is cast upon the person claiming to have been defamed ; Newell, Defamation and Slander.
A communication to be privileged must at the very outset be made with an intent to bestow a benefit, not to injure anyone; it must be bona fide, and if such be satisfactorily proven and the circumstances be such as to render it right and proper that the defendant should plainly state, fully and fairly, the plaintiff’s character, the communication would be privileged, even though it be false, if honestly stated, with no evil intent. If then you believe that the words uttered were spoken by the defendant and the information given at the time stated bona fidte, giving a warning as a physician to a party interested and who ought to know, with no desire or intent to injure the plaintiff, then the communication was privileged and your verdict should be for the defendant.
Applying the law, as above stated to this case, we say to you that the relation of physician and patient and those in attendance is a privileged relation and that the words proved to have been uttered in this case, were privileged, unless from the circumstances surrounding the case you are satisfied by the evidence that they were uttered falsely and maliciously. But, if from the evidence you are satisfied that the defendant was moved and governed by bad motives, an evil intent, or bad faith; that what he uttered he knew to be false, and it was said to gratify some malice or ill-will, or protect himself from censure, then your verdict should be for the plaintiff. We must say to you that when a communication is of a privileged character, and it is interposed as a defense, the burden of proof is *176shifted from the defendant to the plaintiff, and he is bound to prove to your satisfaction actual malice, or that good faith was wanting. In the decision of this matter of privileged communication, you must take into consideration all the proof and circumstances surrounding the case, as well as the position of the parties, and then arrive at your conclusion with reference to the the true intent and meaning with which these words were uttered.
The principles upon which we have stated the law in relation to privileged communication, and the right of the jury to determine the bona fides upon which the facts submitted are sustained by the following citations: Twogood vs. Spyring, 1 Cr. M. & R. 181 ; Padmore vs. Lawrence, 11 Ad. & El. 380.
We must say to you as requested by defendant’s counsel, that should, your verdict be for the plaintiff, you should assess against the defendant damages limited by the natural and necessary damages which legally result in the making of the alleged statements by the defendant, concerning the plaintiff on the occasion proven, without reference to repetitions of the alleged statements by others this is not a case for exemplary damages. We say to you in the language used in the case of Naylor vs. Ponder, “ where evidence is conflicting as in this case, you should harmonize it if you can, and deduce from all the evidence a just conclusion. If unable so (O' harmonize it, you should accept such evidence as from all the circumstances is most credible, taking into consideration the reasonable probability of the case, and the apparent knowledge, intelligence and fairness of the witnesses and their opportunities for obtaining correct information.
Verdict not guilty.