Scottish Court of Session Decisions

Mrs Elizabeth M'Connon or Reid, midwife

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78 George Street, Whiteinch, with consent of her husband as her curator and administrator-in-law, raised an action in the Sheriff Court of Lanarkshire at Glasgow against Edward Coyle, druggist, 300 Dumbarton Road, Partick, and licentiate of the Faculty of Physicians and Surgeons, Glasgow, for the sum of £250 as damages and solatium for slander.

The pursuer averred that the defender had entertained feelings of malice towards her since September 1891 on account of her having without his consent prescribed for a child whom he was attending as medical man at that time. She also averred that the defender had looked upon her “as his opponent in his profession, and his enemy, and had taken every opportunity that appeared of injuring her.” The pursuer set forth the circumstances in which the alleged slanderous statements were made, as follows—“(Cond. 5) In or about the month of September 1891 the pursuer was engaged by Mrs Agnes Moore, wife of Stephen Moore, 42 Smith Street, Whiteinch, to attend her in childbed. The pursuer had attended Mrs Moore on three previous occasions of childbirth. About half-past four o'clock on Monday morning 12th October 1891, Mrs Moore's husband came to the pursuer's house, and knocked her up out of bed, and told her his wife had been very ill during the night with labour pains, and asked her to go to see her. The pursuer accordingly accompanied him to see his wife. When she arrived she found Mrs Moore suffering from severe pains, and on examining her discovered she had symptoms of premature labour—indeed, that premature labour had commenced. Mrs Moore stated she felt very weak, and asked the pursuer if she could not give her something to soothe her pains. The pursuer answered that she could give her a little ‘labour tea’ (that was, ergot of rye) which would probably soothe her pains, and which pursuer had been taught was the proper treatment in such cases. Mrs Moore agreed to take it, and the pursuer measured and gave her half a teaspoonful of the ergot of rye. After getting it Mr Moore said she felt a little better, and inclined to sleep, and pursuer remained with her for an hour or so and then went home, but she left instructions that if Mrs Moore became worse in the morning she was to be sent for. The pursuer was not sent for that morning, but in the evening she received a message that she would not be further required as a doctor had been called in. (Cond. 6) The pursuer believes and avers that Mrs Moore's illness continued, and that the defender was called to see her on Wednesday the 14th October 1891, and on hearing that the pursuer had given her a drug to soothe her pains, he, without so much as inquiring at the pursuer what the drug was, or what dose had been given, and conceiving that it would be a favourable opportunity for indulging his hostile and malicious feelings towards her, falsely, wickedly, calumniously, and maliciously stated to Mrs Moore's husband, the said Stephen Moore, that the pursuer had poisoned his wife. The statement was made in the said Stephen Moore's house at 42 Smith Street, Whiteinch, and was made in a malicious spirit, with the view of injuring the pursuer in the practice of her art as a midwife. (Cond. 7) The pursuer believes that Mrs Moore's illness continued and that she gave birth to a child on Friday morning 16th October 1891, which survived till the evening of the following day, and that she herself died on Sunday 18th October. (Cond. 8) The defender further indulged his hostile and malicious feelings against the pursuer by falsely, wickedly, calumniously, and maliciously stating to the said Stephen Moore, on or about Saturday 17th October 1891, in his house at 42 Smith Street, Whiteinch, that his wife was dying and might not live till night, and that the pursuer had poisoned her by the drug she had given her, or using words of similar import and effect, meaning thereby that the pursuer had poisoned Mrs Moore, and that she was dying in consequence. (Cond. 9) The defender met the said Stephen Moore on Dumbarton Road, Partick, on or about Monday 19th October 1891, after Mrs Moore's death, and further, in pursuance of his hostile and malicious feelings towards pursuer, falsely, wickedly, calumniously, and maliciously stated to him that there was no doubt his wife had been poisoned by the pursuer, and died in consequence, and advised him to give information to that effect to the police authorities so that she might be charged with and put upon her trial for that crime. (Cond. 10) The said Stephen Moore accordingly called at the police office in Partick the same day and lodged information that his wife had been poisoned by, and had died from the effects of, the drug given her by the pursuer. (Cond. 11) The defender, in further pursuance of his hostile and malicious feelings towards pursuer, falsely, wickedly, calumniously, and maliciously, and without probable cause, stated to Archibald M'Kenzie, detective officer, Partick, on or about Tuesday 20th October 1891, in Dumbarton Road, near Whiteinch (while Mr M'Kenzie was mentioning to him that a post mortem examination was to be held that day), that Mrs Moore had been poisoned by a drug of some kind given to her by the pursuer which had caused her death.”

The defender lodged defences to the action, in which he denied that he entertained feelings of malice towards the pursuer, and averred that he had no personal knowledge of the pursuer, and had no recollection of ever having met her. With regard to the alleged slanderous statement on 14th October 1891, he denied having made it, subject to the following explanation:—“Dr Macaulay was the medical man who was called in to attend Mrs Moore, the defender being called in afterwards merely as ‘consultant.’ Dr Macaulay was called in on the morning of Monday, 12th October, and the defender's first visit was made in company with Dr Macaulay on Wednesday the 14th. They examined the patient together

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and made full inquiry into the case, and in the course of these inquiries Mrs Moore told the doctors that she had got half a teacupful of ‘labour tea,’ i.e., ergot of rye, of which the defender expressed disapproval. In the opinion of both medical men Mrs Moore's health was seriously affected by the blood poisoning and other effects resulting from said mistaken and excessive dose, which in their opinion contributed to her death. Dr Macaulay, who certified the death, gave as its cause, ‘said to be some drug,’ ‘gangrene of hand and arm.’ Ergot of rye is not an opiate, and is never used as such. On the contrary, it is an excitant, and is used to strengthen labour pains, but never until labour has begun.” He denied having made the statements on 17th and 19th October attributed to him by the pursuer. With regard to the alleged slanderous statement on 20th October, he also denied having made it, subject to the following explanation:—“In the course of making his investigations, following upon the report made by Mr Moore, Mr M'Kenzie called on Dr Macaulay, and thereafter on the defender at his surgery, and in reply to inquiries put by the detective, the defender stated his opinion as to the injurious effects on Mrs Moore of the administration of said ergot tea.”

On 9th February 1892 the Sheriff-Substitute ( Spens) allowed a proof.

The pursuer appealed to the Second Division of the Court of Session for jury trial, and proposed the following issues for the trial of the cause:—“(1) Whether, on or about 14th October 1891, in the house 42 Smith Street, Whiteinch, occupied by Stephen Moore, the defender falsely and calumniously stated to the said Stephen Moore that the pursuer had poisoned his wife Mrs Agnes Moore, or used words to a like effect, to the loss, injury, and damage of the pursuer? (2) Whether, on or about 17th October 1891, in said house 42 Smith Street, the defender falsely and calumniously stated to the said Stephen Moore that the pursuer had poisoned his wife Mrs Moore, by a drug she had given her, or used words to a like effect, to the loss, injury, and damage of the pursuer? (3) Whether, on or about 19th October 1891, and in or near Dumbarton Road, Partick, Glasgow, the defender falsely and calumniously stated to the said Stephen Moore that there was no doubt that his wife Mrs Moore had been poisoned by the pursuer, and that he ought to give information to the police authorities to that effect, or used words to a like effect, to the loss, injury, and damage of the pursuer? (4) Whether, on or about 20th October 1891, and in Dumbarton Road near Whiteinch, the defender falsely, calumniously, and maliciously, and without probable cause, stated to Archibald M'Kenzie, detective-officer, Partick, that Mrs Moore, wife of Stephen Moore, had been poisoned by a drug given to her by the pursuer, which had caused her death, or used words to that effect, to the loss, injury, and damage of the pursuer?—Damages laid as follows:—Under each of the first three issues £50, £150; under the fourth issue £100—in all £250.”

The defender objected to the first three issues because the words “maliciously and without probable cause” were not inserted in them. He argued—This was a clear case of privilege. A medical man was bound to give a true opinion on the case when called in to attend a patient. He was an official acting in the exercise of his duty— Croucher v. Inglis, June 14, 1889, 16 R. 774.

At advising—