SUPREME COURT.

Globe, Volume I, Issue 54, 1 August 1874, Page 3

SUPREME COURT.

SITTINGS AT NISI PRIUS. Thursday, July 30. (Before his Honor Mr Justicc Gressou and a Special Jury.) The Court opened at 11 a.in. DRURY V PAIN. In this case George Dixon Drury, of Waimatc, medical practitioner, was plaintiff, and James Thomas Pain, also of Waimate, builder, defendant. The case as set forth by the declaration was that the plaintiff attended the son of the defendant in his capacity as medical officer to the Oddfellows’ Lodge at Waimate, and that the said son of the defendant died while under treatment. The defendant was dissatisfied with the way in which the plaintiff had treated his son, and spoke of it to several persons, whereby the plaintiff alleged he was injured in his reputation as a medical man. Damages were laid at £SOO on the general case of slander, and there was also a claim for £SOO special damages, by reason of the plaintiff having lost his appointments as medical officer to the Oddfellows and Sous of Temperance at Waimate, or £IOOO damages in all. Counsel for plaintiff, Mr Garrick, with him Mr Cowlishaw. Counsel for defendant, Mr George Harper, instructed by Mr Morgan. The following gentlemen were sworn as the special jury : —Messrs C. R. Blakiston (foreman), F. H. Wilson, H. W. Packer, W. Dymock, G. P. O’Callaghan, C. Bain, W. D. Wood, J. Field, T. Pavitt, C. Newton, J. Townsend, and J. Bovcy. The following were the issues submitted to the jury. 1. Was the plaintiff at the time of the speaking of the slanderous words in the declaration mentioned a member of the Royal College of Surgeons of England, and duly registered as a duly qualified practitioner according to, and in pursuance of, the provisions of the Medical Practitioners Registration Act, 18(1!).

2. Did the plaintiff at the time of speaking and publishing of such words as aforesaid practice as a duly qualified medical practitioner at Waimatc, and had he, and did he, enjoy a practice of value, and did he hold the appointments as stated in the plaintiff’s declaration !

8. Did the plaintiff, before the time of the speaking and publishing of such words as aforesaid, professionally attend upon George Walter Pain, a member of the Oddfellows’ Society, in the declaration mentioned, and did he treat him with all professional skill and diligence, and did he prescribe such medicines as were adapted for the disoideis under which the said George Walter Pain was languishing 4. Did the defendant, on or about the fifteenth day of September, 1878, falsely, slanderously, and maliciously speak and publish of the plaintiff in relation to his said profession and the carrying on and conducting thereof by him, the words in the fifth paragraph of the plaintiff’s declaration, and were such words spoken and published with the meaning and inuendocs set forth in the declaration /

5, Did the defendant on divers days and tinier, between the lath of September and the 22ud of September, 1878, falsely, shin-

derously, and maliciously speak and publish of the plaintiff, in relation to his said pro* fession and the carrying on and conducting by him, the words complained of in the sixth paragraph of the plaintiff’s declaration, and were such last-mentioned words spoken and published by the defendant with the meaning and iuuendoes set forth in the plaintiff’s declaration ?

6. Did the defendant, on the 22nd of September, 1873, speak and publish to David Cunningham, and clivers other persons, of and concerning the plaintiff in relation to his said profession and the carrying on and conduct of the same, the words complained of in the 7th paragraph of the plaintiff’s declaration, and were such last-mentioned words spoken and published with the meaning and iuuendoes set forth in the said declaration ? 7. Were and are the words set forth in the sth paragraph of the declaration true in substance and effect ? 8. Were and are the words set forth in the 6th paragraph of the declaration true in substance and effect ?

9. Were and are the words complained of iii the 7th paragraph of the plaintiff’s declaration, viz, “ The doetor has no diploma ; if he has I should like to see it” true in substance and effect ? 10. Were and arc the words complained of in the 7th paragraph of the plaintiff’s declaration, viz, “ I can bring witnesses to prove that Dr Mclntyre has said if he had been called in sooner lie could have saved my son,” true in substance and effect ? 11. Wore the words set forth in the sth paragraph of the declaration spoken and published upon the occasions, and under the circumstances in the plea in that behalf set forth ? 12. What damages (if any) is the plaintiff entitled to recover ? Air Cowlishaw, having opened the case for the plaintiff by reading the declaration and pleadings. Air Garrick briefly addressed the jury and called the following evidence in support of the case : George Dixon Drury, the plaintiff in the action, deposed to being a Alember of the Royal College of Surgeons, (Certificate put in). Air Garrick put in the “ Gazette of 16th January, 1871, containing the name of George Dixon Drury as a legally qualified medical practitioner under the Act of 1869, for the years 1873-1. The witness then proceeded to give evidence as to having been in practice at Wairaate and holding the appointments of medical officer to the Loyal Heart of Friendship Lodge, 1.0.0.F.M..U., and the Hand-in-hand Division, No 2,, of the Sons of Temperance, in the month of September last, but that he did not now hold them. He received notice to resign them about the middle of September last. (Letter put in from secretary to the lodge—the defendant in the action—requesting plaintiff to resign.] A similar letter was received from the Sons of Temperance. He imagined that these dismissals resulted from the slander circulated respecting the death of George Walter Pain. The income from the two societies was £llO per annum, and the whole of his income arising from the general practice and the societies was between £3OO and £IOO per annum. The witness then proceeded to detail the circumstances connected with his attending the son of the plaintiff. Shortly after the death of the boy, witness was present at a lodge meeting. He believed the defendant made statements affecting his character as surgeon of the lodge, but he had left before they were made. He had attended the sou of the defendant with all skill and punctuality. On cross-examination, the witness stated that the letter from the defendant as secretary of the lodge was to determine the agreement three months from that date, [better put in from the witness to the Sons of Temperance Lodge, resigning his office as surgeon of the’ lodge, dated Bth September.] On September 6th he received a letter requesting him to resign his office as surgeon to the division. The reason of this request to resign was in consequence of monetary matters. The agreement with the Oddfellows was not determined after three months from July. [Letter put in from witness to the lodge and read, complaining of the lodge advertising for another medical man before giving him notice.] Neither of the notices received from either of the lodges referred to incapacity. The witness was cross-examined and reexamined at great length respecting his treatment, and ultimately the Court adjourned until 10 a.m. to-day. Friday, July 31, The Court re-opened at 10 a.m. DRURY V PAIN. The hearing of this case was resumed. James Bruce gave evidence as to having been present at a public meeting, where the defendant stated that the doctor (the plaintiff) had treated his son wrongly, that he had treated him for a different disease to the one he had given a certificate of death for, also that the defendant had said that the plaintiff had purged his son to death, and that if he (the doctor) had a diploma, witness would like to see it. The witness then went on to give evidence as to the dismissal of the plaintiff from the Oddfellows, and as to several conversations held between him and the defendant, in which the latter spoke very strongly against the plaintiff. The report respecting the alleged mal-treat-mont of young Bain was generally circulated, and he believed affected Dr Drury’s position.

On cross-examination by Mr Harper, the witness detailed the circumstances attending the calling of the public meeting referred to, and the words used by defendant thereat. A meeting of the committee of the Oddfellows was held on September 15th to alter the pecuniary arrangement with the doctor. A committee of six was then appointed to consider and define the duties and status of the doctor, and a resolution was passed on July 28rd appointing a committee to investigate any charges brought against the doctor. In September a meeting of the committee was held, and he (witness) proposed a resolution that all complaints against the doctor should be made in writing. A resolution was carried that the discussion should be an open one. A resolution proposed by Pain that advertisements be inserted in the papers calling for applications for the post of medical officer to the lodge, and that the Temperance Lodge and public be solicited to join in the endeavor to obtain a medical officer for both lodges and the district, was carried. An amendment seconded by witness, to the effect that the lodge apply for a doctor on its own account, was not agreed to. The resolution dismissing Dr Drury was proposed by defendant’s sou and was carried.

The witness was re-examined, but nothing material was elicited. Walter Foster Finn gave evidence corroborative of that given by the last witness. David Cunningham deposed to Bruce having said that he would head a subscription list to prosecute Dr Drury if the statements made were correct. On cross-examination by Mr Harper, the witness said he did not, at the public meeting on the 22nd July hear defendant say anything as to a diploma. Mr John Manchester had said something about the diploma. The witness then went on to speak as to the meeting of September loth, and stated that he did not hear the defendant use the words respecting Dr Drury which were alleged to have been used there. He understood from the defendant that the doctor had treated his son for one disease while he was laboring under another, and that he had purged him to death.

George Randall Freeman, examined by Mr Cowlishaw, deposed as to the proceedings at the meeting of the lodge of Oddfellows in September, and as to the use by the defendant of the words imputed in the plaintiff’s declaration.

On cross-examination by Mr Harper, the witness stated that other persons besides defendant spoke against Dr Drury at the meeting in question. This closed the plaintiff’s case.

Mr Harper having briefly addressed the j ury, called the following evidence in support of defendant’s case :

James Thomas Pain, the defendant in the action, deposed as to his son being taken ill on the 9th August, and his calling in Dr Drury on the 10th, but that he did not come, giving witness a sleeping powder for his son who had brought home with him an aperient draught. Severe purging set in after taking a dose of the aperient draught, which increased as further doses were taken. Dr Drury attended on the Monday, and on he Tuesday. On the latter morning, the witness finding his sou getting worse, asked the doctor what was the matter with him, and the reply was that he had a bad attack of bilious fever. At this time his sou was so low from incessant purging that he could not stand. During a conversation between Dr Drury and witness’s son, the former said, looking at the expectoration which was tinged with blood, “ This stuff is coming from your stomach ; I must give you a vomit!” The lad replied, “Don’t give me another, doctor, the last nearly killed me.” On the Tuesday the plaintiff brought a stethoscope, and sounded defendant's son ; he also said that Dr MTntyre was coming, and asked the witness if he should bring him, to which witness assented. Nothing had been said up to this time as to the boy suffering from disease of the lungs. A consultation between Drs Drury and MTntyre was subsequently held on defendant’s sou. Witness asked Dr MTntyre, before Er Drury and his son, what he thought of him, and he said there was little hopes of his life. He told the boy he was a strong lad nud appeared to have led a steady life ; he had seen worse cases than his pull through, but that three days would decide the question. Ou Wednesday the plaintiff brought a blister and applied it to the stomach of witness’s son. The medicine sent on this day was of a different character to that previously sent — a cough mixture and another bottle. The purging still continued, but not so frequent as at first, and continued till death. Bran poultices were put on either on the Wednesday or the Thursday, Dr Drury stating that this was by the orders of Dr Mclntyre. Leeches were also ordered by Dr Drury, who stated that the lad had brain fever. They were applied to his head on the Saturday. On the next day the witness’s sou was much worse, and more leeches were applied. There was a fire in the room, which was ordered to be put out by the plaintiff as the room was too hot ; he also ordered the windows to be opened and seemed to be very confused, Ou the Sunday evening, his sou becoming worse, witness sent for Dr Mclntyre, informing Drury that he had done so and asking him to meet him. During that day the plaintiff had only visited the deceased once. Dr Mclntyre arrived on the Monday morning and witness’ son died about five hours after his arrival. Up to Tuesday Dr Drury told witness that the illness his son was suffering under was bilious fever. After Dr Mclntyre saw the patient fresh medicines were giveu and the old ones removed. The witness then proceeded to give evidence as to the lodge meeting of the 21st July, and the resolutions passed thereat with reference to Dr Drury, and the termination of his agreement with the Lodge, and also the appointment of a committee to consider any charges made against Dr Drury, the committee met on the 20th July and passed a resolution that certain complaints made by Bros Butcher and Manchester against Dr Drury should be discussed in open lodge, and also that an advertisement should be inserted calling for applications for the post of surgeon to the lodge. [The minutes of these meetings were put in and read.] The witness then proceeded to detail what took place at the public meeting on the 22nd September, At this meeting the witness stated that Dr Drury had attended his son for some time for what he stated to be bilious fever ; that the doctor led witness to believe this until Dr MTntyre came ; that he had never sounded him, and that he had given him purgative medicines. He also stated that the doctor had given him a certificate of death from pneumonia, whereas he had told witness, until Dr MTntyre came, that he had bilious fever. Witness denied using the words imputed to him by' some of the plaintTT‘s witnesses. He might have said his son was purged to death, bat he was not referring to Dr Drury at the time. Witness also denied using any words as to Dr Drury holding a diploma or not. At the meeting, which was a very noisy one, many people spoke against the doctor as well as the witness. Witness never to his recollection held a conversation with the witness Finn such as that deposed to by him. At the lodge meeting on the 15th September, witness made the same statement as at the public meeting, and shovred the certificate of death given. Several others were called upon to give evidence as to the doctor before the witness did so. As a member of the committee it was his duty to make the statement he did. Witness did not go about telling everybody about the doctor; it was only at the two meetings that he had spoken about the doctor. Witness received a lawyer’s letter-, dated November Oth, requesting an apology, and to make arrangements for pecuniarily compensating Dr Drury for alleged injuries sustained by reason ol his remarks. [Letters put in between plaintiff’s solicitor and defendant. | The Court at this stage adjourned until 10 a.ra, this day.