Legal Miscellany.

Physician Giving to Medical Association Names of Patients who were slow to

a

Pay, whether Guilty of Libel. An interesting illustration of what constitutes a privileged communication occurs in McDonald v. Lee (Pa.), 92 Atl., 135. This was an action of trespass in which the plaintiff sought to recover damages for an alleged libel. It appears. from the record that a number of physicians in a particular community determined to prepare, for their own use, a list of the names of patients who were slow in making payments for medical services rendered to them. The information was for the benefit of the members only of the medical association, and there was no understanding between them that professional services should be refused to those whose names appeared upon the list. The defendant was member of this association, and she furnished to the secretary, among other names of persons whom she regarded as able to pay, but who were slow in making payment for services, the name of the plaintiff. The list of names thus reported as slow pay was printed by the association, with the number of the physician who furnished the name added. There was nothing upon the face of the publication to indicate its purpose, and no one but a member could understand its meaning. The publication was considered confidential, and was limited to the members of the medical association. In plaintiff's statement of claim there was no averment of any special damage to plaintiff resulting from the publication, nor was there any proof of such damage. Upon the trial, at the close of the testimony, the trial judge gave binding instructions in favor of the defendant, upon the ground that the communication was a privileged one, and there was no evidence of malice, nor was any special damage shown. There was a judgment for the defendant which was affirmed on appeal. The court in affirming the judgment used language as fol

lows: "The alleged libel was a communication made in confidence to and for the exclusive use of the members of the Carlisle Medical Club. It had reference only to the manner in which plaintiff made payment for services rendered. It does not appear that, by reason of the report, credit was refused to plaintiff, or that any member of the association refused to serve him in a professional way. It was the duty of the court to determine whether or not the words used were libelous per se. If they were not, then, in the absence of averment of special damage, binding instructions were proper. We can see no sufficient ground for holding the publication to be libelous. per se. If it became actionable by reason of some special damage occasioned thereby, that fact should have been alleged in the declaration, and proof thereof should have been offered upon the trial. It was shown that the words here used with respect to the plaintiff did not go beyond imputing to him slowness in the payment of his bills, and under the evidence it can hardly be claimed that he was prompt in the discharge of that duty. The accusation was not so serious in its character as to be fairly regarded as in itself libelous, and, if any injury was occasioned to plaintiff thereby, it does not appear from the testimony. The good faith of the defendant in making the communication was not questioned. She had an interest in the subject-matter, and the communication was made to persons having a corresponding interest in the subject."

A wife claiming property acquired during coverture against her husband's creditors, is required to substantiate her claim by proof sufficient to repel all adverse presumption. The law does not require proof of such a

character as to relieve from every doubt, but

only proof that is clear and satisfactory. The burden is on her to show that the property itself was her separate property by gift, descent, or otherwise, or that the money which she put into the property was her own money or obtained upon her credit.

Appeal No. 87 of October Term, 1914, by plaintiff, A. Belle Hilton, from judgment of C. P. of Lancaster Co. to October Term, 1913, No. 45, on a verdict. partly for the plaintiff and partly for the defendant, The Leibig Mfg. Co., in a sheriff's interpleader issue on an execution against the plaintiff's husband, Eber E. Hilton. Reversed.

(For opinion of Court below on rule for a new trial, see 31 LAW REVIEW, 257.)

The Court below (HASSLER, J.) admitted the following offer in evidence on the part of the defendant:

"Defendant offers in evidence the testimony of Eber E. Hilton taken in the Orphans' Court on January 23, 1913, in the matter of the Estate of Margaret C. Wilson, to April Term, 1911, No. 9. For the purpose of contradicting him in his testimony that his wife paid that note out of the money she received from Margaret Wilson's estate.

MR. DAVIS: That is objected to. is not relevant to this issue. THE COURT: Admitted.

'BY THE COURT:

What have not been paid?

'By MR. DAVIS:

J.

Milton Wilson $548.32; Malinda P. Conner $219.29; H. Galen Eshleman $219.09 he is the petitioner here. 'By THE COURT:

Those have not been paid.

By MR. DAVIS:

Those have not been paid, and they are ready to pay them except for this appeal. And A. Belle Hilton $3,508.64 in the last adjudication.

'BY THE COURT:

That has not been paid. By MR. DAVIS:

No, she is the appellant. She took the appeal to the Superior Court.'" [6]

The Court below, in the direct examination of Clayton S. Mellinger, a witness called by the defendant, admitted the following questions:

"Q. Who is the maker of that note? MR. DAVIS: Objected to, if the Court please.

THE COURT: Allowed.

(Exception noted for plaintiff.)

A. We have a record here of a E. E. Hilton note.

MR. DAVIS: That is objected to.
THE COURT: Allowed.

(Exception noted for plaintiff.) Q. Have you a record there of a note of E. T. Hilton, Agt.? A. No, sir.

Q. It appears on your record as E. E. Hilton, and not E. E. Hilton, Agt.? A. Yes, sir. It was so received from the Philadelphia Bank." [7]

The Court below charged the jury, inter alia, as follows:

that it was her separate estate that was used to pay for them." [2]

"If he did not, no matter whether she paid for them or not, if he did not purchase them as her agent, then he purchased them for himself so far as the testimony in this case shows, and they were his property, and in the absence of proof that he afterwards sold them to his wife there can be no recovery by her of these mules. If you find that he did purchase them as her agent, then she has proven one step in her case as to the mules, and she must, in addition, prove that they were paid for out of her separate estate." [3]

"If you find she had a separate estate, and that it was used either to borrow money to pay these notes, or used to pay the notes, then if you find that the husband bought these goods as her agent, she has made out her entire case, and the verdict should be in her favor. But if she had no separate estate, then the verdict in all the items claimed that were purchased by her husband for her as agent would have to be in favor of the defendant." [4]

The Court below answered defendant's second point as follows:

"2. In a sheriff's interpleader where the wife of the defendant in the execution claims the goods which are in the apparent possession of the husband, and alleges the husband's position to have been that of her agent or employer, the law will not presume the existence of her separate estate, but she must prove her title by evidence which does not admit of a reasonable doubt.

ANSWER: We affirm this point." [1] The Court below answered the plaintiff's third point, as follows:

"3. If the husband acted as agent for his wife, A. Belle Hilton, it mattered not whether the notes he gave were in his own name or as agent, provided A. Belle Hilton paid the said notes which, upon the uncontradicted evidence, she did:

and, if the jury believe the testimony of the witnesses that she paid the notes, then their verdict should be in her favor as to the property for which the notes were given in payment.

Answer: We affirm this point. If the jury believe that Eber E. Hilton, the plaintiff's husband, acted as her agent and bought the mules as her agent, they were her property, whether he gave the notes in his individual name or in his name as agent, provided she paid for them out of her own separate property and estate. But we say further to you that if he did not give notes in the name of Eber E. Hilton as agent, but subsequently added the name agent to his name on these notes, then these notes would not be corroboration of his testimony that he purchased the mules as agent for his wife." [5]

On appeal the plaintiff assigned error [1-7] as above.

B. F. Davis, for appellant.

"Proof of ownership in the wife must be clear and satisfactory, sufficient to repel all adverse presumptions, but it need not be so clear that there can be no doubt, nor, if a doubt exists, must it operate affirmatively to induce a verdict against her."

Tippner v. Abrahams, 47 Pa., 220. Earl v. Champion, 65 Pa., 191. Heiges v. Pefer, 224 Pa., 628. Sperring v. Laughlin, 113 Pa., 209. The wife need not prove that she had a separate estate. She might buy and own property with borrowed money.

Evans v. Evans, 155 Pa., 572.
Campe v. Harne, 158 Pa., 508.

Marshall . Richmond, 164 Pa., 566. Children's Aid Society v. Benford, 26 Super., 555.

Gockley v. Miller, 162 Pa., 271. Sperring v. Laughlin, 113 Pa., 209. The admission of testimony in another proceeding in the Orphans' Court was utterly irrelevant.

If it is to be treated as a declaration made by the husband against the wife's interest, it is for that reason inadmis

sible:

Martin v. Rutt, 127 Pa., 380.

And that is the law even where the

husband is called as a witness, as in Evans v. Evans, 155 Pa., 572, page 577.

John E. Malone, J. W. Johnson and Coyle & Keller, for appellee.

The appellant claimed that she paid

A sale of a large lot of tobacco after the purchaser had examined several bales, under a contract afterwards reduced to writing con

taining an express warranty, is not a sale by. inspection, nor were the defects complained of patent, and therefore not within the warranty.

Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster County. August Term, 1914, No. 51.

H. Edgar Sherts, for rule.

Wm. R. Brinton, contra.

action there would be merit in plaintiff's contention, but something was done, however, which completely changed the character of the sale. It was reducing their contract to writing by the parties. No matter what else was done by the plaintiff and defendant in effecting the sale of this tobacco, the written contract is the real contract between them. In it, it appears that the defendant did not rely on his inspection of the tobacco, but that the plaintiff expressly warranted that it would be free from burn,

This is a rule for judgment for want. of a sufficient affidavit of defense. In his

statement the plaintiff alleges that on May 14, 1914, he sold his crop of tobacco to the defendant, and that upon defendant's refusal to accept and pay for it, he subsequently sold it to a third person for an amount less than the defendant had agreed to pay, and it is this difference which he seeks to recover in this action. He alleges that the sale was by inspection.

The defendant in his affidavit of defense admits the purchase of the tobacco, but alleges that the contract was in writing, and in it the defendant agreed inter alia that "the wrappers to be well assorted, free from burn, frosted, pole sweat, mould, or any damage, and all to be delivered in good merchantable order at his (plaintiff's) warehouse." It is further alleged that when delivery of the tobacco was made it was "found that large portions of the same were cellar mouldy and black rot, and that the tobacco was not in good merchantable order. . . . That the said tobacco was not well assorted, was not free from burn, frosted, pole sweat, or other damages, and was not in good merchantable order." Because of this the defendant refused to accept it.

age, in good merchantable order and well assorted.

There are some cases that hold that where defects in chattels are easily observable, and a vendee purchases them having examined the defects and observed and known just what they were, he would be required to take and pay for it notwithstanding an express warranty against such defects. These cases, however, do not apply here. There was a large quantity of this tobacco, and it was tied up in bales. The defendant says that he only examined one or two of the bales. The defects complained of were, therefore, not patent, and in order to protect himself against such defects he required a written warranty that it did not contain them.

In Weimer v. Clement, 37 Pa., 147, a case cited by the plaintiff, it is decided that a vendee may protect himself by an express warranty even after examination of the chattels purchased. In Adams v.. Rogers, 9 Watts, 121, it is decided that a vendee can protect himself by an express warranty even though he examined the flour at the vendee's mill at the time he purchased it.

particulars in which they did not meet. the warranty of them by the plaintiff, we must hold that the affidavit of defense is sufficient to prevent judgment and discharge the rule.