The motion for a new trial is founded upon a supposed error of the judge in his charge to the jury.
The defendant insisted, on the trial in the court below, that if the jury did not believe that the defendant intended to impute to the plaintiff a felonious homicide, or intentional mismanagement in his profession, though the imputation made and proved were false and malicious, yet they ought not to find the defendant guilty. The judge charged in opposition to this request of the defendant; and this presents the question f®r consideration.
The counsel for the defendant, contend, that to charge a physician or surgeon with mismanagement in his treatment of a particular case, is not actionable without an averment of special damage, — though false and malieious. Such a charge imputes neither crime, nor such professional ignorance as will sustain an action. The most skillful practitioner may mistake the disease, apply improper remedies, and even destroy life, by mismanagement, and yet be wholly innocent. They therefore, insist, that in this case, the charge was erroneous, inasmuch as it substantially contravened these principles, and instructed the jury, that if the defendant did not impute either crime or intentional mismanagement, which indeed would be a crime, nor gross ignorance in his profession, still the defendant ought to be found guilty, if the charge was false and malicious. In support of these positions taken by the defendant, the cases of Poe v. Dr Mondford, Cro. Eliz. 620. Feise v. Linder, 3 Bos. & Pull. 372. and Foot v. Brown, 8 Johns. Rep. 64. are cited and relied on.
The words spoken by the defendant were indeed very offensive ; and they are to be taken, within the rule laid down by the judge, to have been false and malicious. A case, then, is presented well calculated to excite a just indignation against the defendant; but still is he within the limits authorized by law ? Malignant as his heart might have been towards this plaintiff, are the words actionable, qualified as they are with the charge?
T was not able, at the trial, to resist the argument of the de*265fendant’s counsel, supported by the authorities ; and my difficulties are not removed, by the opinions and reasons of my brethren. It appears to me, the distinction taken is solid, and is based on sound principles. If the words spoken imputed to the plaintiff crime, intentional mismanagement or gross ignorance in his profession, being false and malicious, then the law implies damage, and an action is given; otherwise, special damage must be alleged and proved. Here is no allegation of special damage : none then is to be presumed. In Poe v. Dr. Mondford, Cro. Eliz 620. it was decided, that to charge a physician with having killed a patient with physic, was not actionable ; and the distinction between those words and where the charge was, that he did it knowingly and voluntarily, was taken. The same doctrine was recognized, by the whole court of Common Pleas, in Fiese v. Linder, 3 Bos. & Pull. 372. The words were, “ he has brought a forged bill of lading for half the cargo already.” They were holden, after verdict, not actionable, unless special damages had been sustained. Two cases are there cited, in which it was holden not actionable to say of a man, he had lived upon forged bonds, or that he had recovered 400Z. by forgery. The decision in 3 Bos. & Pull, was in 1803, since the doctrine has been exploded, that words were to be taken in miliori sensu.
In a case in 1813, in the supreme court of New-York, Foot v. Brown, 8 Johns. Rep. 64. the same principles were adopted. There the plaintiff, an attorney and counsellor at law, was charged thus : “ Foot knows nothing about the suit ; (meaning an ejectment suit, and speaking to Foot’s clients) and he will lead you on until he has undone you ” This declaration was holden bad after verdict; and the reasoning of the court is very much in harmony with the argument of the counsel in this case.
The counsel for the plaintiff refer to several authorities, in support of the charge. Martin v. Burlings, Cro. Eliz. 589. Watson v. Vanderlash, Het. 69. Tutly v. Alewin, 11 Mod. 221. Smith v. Taylor, 1 New Rep. 196. I am not satisfied, that the position taken is supported, by any or all those authorities. In relation to that in Cro. Eliz. the words contained a. charge of gross ignorance against the plaintiff in his profession of an attorney: “ He is the foolishest and simplest attorney towards the law. He is a fool and an ass.”
In Tutly v. Alewin, 11 Mod. 221. an action against the defend*266ant, an apothecary, the words were: “ It is a world of blood he has to answer for, in this town, through his ignorance : he did kill a woman and ten children, at Southampton: he did kill John Prior, at Petersfield;" it was adjudged, that the action lay. It is fairly implied in these words, that gross ignorance was imputed to the plaintiff. " It is a world of blood he has to answer for, in this town, through his ignorance.” But again : “ he has to answer for a world of blood.” Here, general and indiscriminate mal-practice is ascribed to the plaintiff, and the particular cases are cited as examples. In Starkie on Slander, the above case is cited in proof of the proposition, that words spoken of a physician importing want of skill, are actionable. A case in Cro. Car. 211. (Flower’s case,) is of the same import: “ Many have perished through his want of skill,” implying a want of skill, or ignorance in his profession. The same doctrine is in Hetley 69. In none of these cases is the law laid down as contained in this charge. The case cited from 1 New Rep. 196. Smith v. Taylor, contains not a word on this subject. The case turned on a totally different point.
It was, however, urged in opposition to the motion, that the words impute to the plaintiff ignorance or mal-practice, generally, in his profession. I cannot so understand them. They are employed only about his treatment of a pregnant woman and her twin children, one dead at the birth, and the other dying with its mother soon after its birth. As this idea seems to be embraced by my brethren, and to influence their opinions, I have looked with attention into that part of the declaration brought into view by this motion, and it strikes me as entirely silent, except to the plaintiff’s management in the case stated ; and not to impute any ignorance, except in the management of this particular case.
I am thus compelled to differ from the other members of the court, and to say, that the charge was incorrect.
Brainard, J.-was absent.New trial not to be granted.