Part 2 — CHAPTER VI DEFAMATION

CLUTTERBUCK v. CHAFFERS At Nisi Prius, coram Lord Ellenborough, C. J., December 14, 1816. Reported in 1 Starkie, 471.

This was an action for the publication of a libel.

The witness who was called to prove the publication of the libel (which was contained in a letter written by the defendant to the plaintiff) stated on cross-examination that the letter had been delivered to him folded up, but unsealed, and that without reading it, or allowing any other person to read it, he had delivered it to the plaintiff himself, as he had been directed.

Lord Ellenborough held that this did not amount to a publication which would support an action, although it would have sustained an indictment,^[413] since a publication to the party himself tends to a breach of the peace.

Verdict for the defendant.^[414]

658

SNYDER v. ANDREWS Supreme Court, New York, March 5, 1849. Reported in 6 Barbour, 43.

This was an action on the case for a libel. The defendant pleaded the general issue, and gave notice of special matter.^[415]

The cause was tried at the Saratoga circuit in November, 1847, before Justice Paige. On the trial the defendant admitted that he wrote the letter containing the alleged libel, sealed the same, and put it into the post-office at Saratoga Springs, directed to the plaintiff at his residence. The plaintiff proved by John R. Brown that the letter was read to the witness by the defendant at his office in the presence of a young man who was a clerk of the defendant. The defendant’s counsel then moved for a nonsuit, on the ground that a publication of the libel had not been proved. The judge denied the motion.

The jury found a verdict for the plaintiff of $250. And the defendant, upon a bill of exceptions, moved for a new trial.

Willard, J. The fact that the defendant read the letter to a stranger, before it was sent to the plaintiff, was not questioned on the trial, and is assumed to be true by the form of the objection; but it is insisted that such reading did not amount to a publication of the libel. No man incurs any civil responsibility by what he thinks or even writes, unless he divulges his thoughts to the temporal prejudice of another. Hence, a sealed letter containing libellous matter, if communicated to no one but to the party libelled, is not the foundation for a civil action, although it may be of an indictment. Lyle v. Clason, 1 Caines, 581; Hodges v. The State, 5 Humphrey, 112; 1 Wms. Saund. 132, n. 2; Phillips v. Jansen, 2 Esp. 626; 2 Starkie on Slander (Wend. ed.), 14. But where the defendant, knowing that letters addressed to the plaintiff were usually opened by and read by his clerk, wrote a libellous letter and directed it to the plaintiff and his clerk received and read it, it was held there was a sufficient publication to support the action. Delacroix v. Thevenot, 2 Stark. 63. And in Schenck v. Schenck, 1 Spencer, 208, a sealed letter addressed and delivered to the wife containing a libel on her husband was held a publication sufficient to enable the latter to sustain an action.^[416] Reading or singing the contents of a libel in the presence of others has been 659adjudged a publication. 2 Starkie on Slander, 16; 5 Rep. 125; 9 Id. 59 b; 1 Saund. 132, n. 2. The reading of the letter in question by the defendant in the presence of Brown was a sufficient publication to sustain this action.

New trial denied.^[417]

DELACROIX v. THEVENOT At Nisi Prius, coram Lord Ellenborough, C. J., March 4, 1817. Reported in 2 Starkie, 63.

This was an action for a libel and slanderous words. The libel was contained in a letter directed to plaintiff.

A clerk of the plaintiff proved that he had received the letter; that it was in the handwriting of the defendant; and that in the absence of the plaintiff he was in the habit of opening letters directed to him which were not marked “private.” He further stated that defendant, who was well acquainted with the plaintiff, was aware of the nature of his (the clerk’s) employment, and that he believed defendant knew that witness was in the habit of opening plaintiff’s letters.

Lord Ellenborough said that there was sufficient evidence for the jury to consider whether defendant did not intend the letter to come to the hands of a third person, which would be a publication.

Verdict for plaintiff. Damages, £100.^[418]

SHEFFILL v. VAN DEUSEN Supreme Judicial Court, Massachusetts, September Term, 1859. Reported in 13 Gray, 304.

Action of tort for slander.

Bigelow, J.^[419] Proof of the publication of the defamatory words alleged in the declaration was essential to the maintenance of this action. Slander consists in uttering words to the injury of a person’s reputation. No such injury is done when the words are uttered only 660to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opinion of other men, and not in a party’s self-estimation, which constitutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plaintiff, containing defamatory matter, was held insufficient proof of publication; although it would be otherwise in an indictment for libel, because such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language, which no one present understood, no action will lie therefor.^[420] Edwards v. Wooton, 12 Co. 35; Hick’s Case, Pop. 139, Hob. 215; Wheeler & Appleton’s Case, Godb. 340; Phillips v. Jansen, 2 Esp. 624; Lyle v. Clason, 1 Caines, 581; Hammond N. P. 287.

It is quite immaterial in the present case that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third persons? The defendants were therefore entitled to the instructions for which they asked.

Exceptions sustained.^[421]

661

HANKINSON v. BILBY In the Exchequer, January 28, 1847. Reported in 16 Meeson & Welsby, 442.

Case. The declaration stated that the defendant, in the presence and hearing of divers subjects, falsely and maliciously charged the plaintiff, a gardener, with being a thief. Plea: Not guilty. At the trial, before Rolfe, B., it appeared that the words were uttered by the defendant, a toll collector, to the plaintiff, as he passed the Kingsland turnpike-gate, in the presence of several persons as well as the witness. The nature of the previous conversation between the plaintiff and defendant did not appear. The learned Baron told the jury that it was immaterial whether the defendant intended to convey a charge of felony against the plaintiff by the words used, the question being, whether the by-standers would understand that charge to be conveyed by them. Verdict for the plaintiff for £5.

Humfrey now moved for a new trial, on the ground of misdirection.^[422]

Alderson, B. In this case, had there been no by-standers who could understand the words as imputing felony, or who knew all about the affair respecting which they were uttered, the judge’s direction would have been wrong, for it would then be damnum absque injuria, the injuria being the having no lawful occasion to impute felony.

Parke, B. The witness appears to have been well acquainted with the affair to which the words related. If the by-standers were equally cognizant of it, the defendant would have been entitled to a verdict; but here the only question is, whether the private intention of a man who utters injurious words is material, if by-standers may fairly understand them in a sense and manner injurious to the party to whom they relate, e. g., that he was a felon.

Some doubt being suggested as to the facts proved, the court conferred with Rolfe, B.; and the next day,

Pollock, C. B., said, We find from my Brother Rolfe that there were several by-standers who not only might but must have heard the expressions which form the subject of this action. That disposes of the case as to the matter of law. Words uttered must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals better informed on the matter alluded to might form a different judgment on the subject.

Rule refused.^[423]

662

BROMAGE v. PROSSER In the King’s Bench, Easter Term, 1825. Reported in 4 Barnewall & Cresswell, 247.

Bayley, J., now delivered the judgment of the court.^[424] This was an action for slander. The plaintiffs were bankers at Monmouth, and the charge was, that in answer to a question from one Lewis Watkins, whether he, the defendant, had said that the plaintiff’s bank had stopped, the defendant’s answer was, “It was true, he had been told so.” The evidence was, that Watkins met defendant and said, “I hear that you say the bank of Bromage and Snead, at Monmouth, has stopped. Is it true?” Defendant said, “Yes, it is; I was told so.” He added, “It was so reported at Crickhowell, and nobody would take their bills, and that he had come to town in consequence of it himself.” Watkins said, “You had better take care what you say; you first brought the news to town, and told Mr. John Thomas of it.” Defendant repeated, “I was told so.” Defendant had been told, at Crickhowell, there was a run upon plaintiff’s bank, but not that it had stopped, or that nobody would take their bills, and what he said went greatly beyond what he had heard. The learned judge considered the words as proved, and he does not appear to have treated it as a case of privileged communication; but as the defendant did not appear to be actuated by any ill will against the plaintiffs, he told the jury that if they thought the words were not spoken maliciously, though they might unfortunately have produced injury to the plaintiffs, the defendant ought to have their verdict; but if they thought them spoken maliciously, they should find for the plaintiff: and the jury having found for the defendant, the question upon a motion for a new trial was upon the propriety of this direction. If in an ordinary case of slander (not a case of privileged communication), want of malice 663is a question of fact for the consideration of a jury, the direction was right; but if in such a case the law implies such malice as is necessary to maintain the action, it is the duty of the judge to withdraw the question of malice from the consideration of the jury: and it appears to us that the direction in this case was wrong. That malice, in some sense, is the gist of the action, and that therefore the manner and occasion of speaking the words is admissible in evidence to show they were not spoken with malice, is said to have been agreed (either by all the judges, or at least by the four who thought the truth might be given in evidence on the general issue) in Smith v. Richardson, Willes, 24; and it is laid down in 1 Com. Dig. action upon the case for defamation, G 5, that the declaration must show a malicious intent in the defendant, and there are some other very useful elementary books in which it is said that malice is the gist of the action, but in what sense the words malice or malicious intent are here to be understood, whether in the popular sense, or in the sense the law puts upon those expressions, none of these authorities state. Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are; if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. Russell on Crimes, 614, N. 1. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognizes the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely, it is not necessary to state that they were spoken maliciously. This is so laid down in Style, 392, and was adjudged upon error in Mercer v. Sparks, Owen, 51; Noy, 35. The objection there was, that the words were not charged to have been spoken maliciously, but the court answered, that the words were themselves malicious and slanderous, and, therefore, the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servant’s characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff, and in Edmonson v. Stevenson, 1 Term Rep. 664110, Lord Mansfield takes the distinction between these and ordinary actions of slander. In Weatherstone v. Hawkins, Bull. N. P. 8, where a master who had given a servant a character, which prevented his being hired, gave his brother-in-law, who applied to him upon the subject, a detail by letter of certain instances in which the servant had defrauded him; Wood, who argued for the plaintiff, insisted that this case did not differ from the case of common libels, that it had the two essential ingredients, slander and falsehood; that it was not necessary to prove express malice; if the matter is slanderous, malice is implied, it is sufficient to prove publication; the motives of the party publishing are never gone into, and that the same doctrine held in actions for words, no express malice need be proved. Lord Mansfield said the general rules are laid down as Mr. Wood has stated, but to every libel there may be an implied justification from the occasion. So as to the words, instead of the plaintiff’s showing it to be false and malicious, it appears to be incidental to the application by the intended master for the character; and Buller, J., said, this is an exception to the general rule, on account of the occasion of writing. In actions of this kind, the plaintiff must prove the words “malicious” as well as false. Buller, J., repeats in Pasley v. Freeman, 3 T. R. 61, that for words spoken confidentially upon advice asked, no action lies, unless express malice can be proved. So in Hargrave v. Le Breton, 3 Burr. 2425, Lord Mansfield states that no action can be maintained against a master for the character he gives a servant, unless there are extraordinary circumstances of express malice. But in an ordinary action for a libel or for words, though evidence of malice may be given to increase the damages, it never is considered as essential, nor is there any instance of a verdict for a defendant on the ground of want of malice. Numberless occasions must have occurred (particularly in cases where a defendant only repeated what he had heard before, but without naming the author), upon which, if that were a tenable ground, verdicts would have been sought for and obtained, and the absence of any such instance is a proof of what has been the general and universal opinion upon the point. Had it been noticed to the jury how the defendant came to speak the words, and had it been left to them as a previous question, whether the defendant understood Watkins as asking for information for his own guidance, and that the defendant spoke what he did to Watkins, merely by way of honest advice to regulate his conduct, the question of malice in fact would have been proper as a second question to the jury, if their minds were in favor of the defendant upon the first; but as the previous question I have mentioned was never put to the jury, but this was treated as an ordinary case of slander, we are of opinion that the question of malice ought not to have been left to the jury. It was, however, pressed upon us with considerable force, that we ought not to grant a new trial, on the ground that the evidence did not support any of the 665counts in the declaration, but upon carefully attending to the declaration and the evidence, we think we are not warranted in saying that there was no evidence to go to the jury to support the declaration; and had the learned judge intimated an opinion that there was no such evidence, the plaintiff might have attempted to supply the defect. We, therefore, think that we cannot properly refuse a new trial, upon the ground that the result upon the trial might have been doubtful. In granting a new trial, however, the court does not mean to say that it may not be proper to put the question of malice as a question of fact for the consideration of the jury; for if the jury should think that when Watkins asked his question the defendant understood it as asked in order to obtain information to regulate his own conduct, it will range under the cases of privileged communication, and the question of malice, in fact, will then be a necessary part of the jury’s inquiry; but it does not appear that it was left to the jury in this case, to consider whether this was understood by the defendant as an application to him for advice, and if not, the question of malice was improperly left to their consideration. We are, therefore, of opinion, that the rule for a new trial must be absolute.

Rule absolute.^[425]

HANSON v. GLOBE NEWSPAPER COMPANY Supreme Judicial Court, Massachusetts, June 20, 1893. Reported in 159 Massachusetts Reports, 293.

Knowlton, J.^[426] The defendant published in its newspaper an article describing the conduct of a prisoner brought before the Municipal Court of Boston, and the proceedings of the court in the case, designating him as “H. P. Hanson, a real estate and insurance broker of South Boston.” He was, in fact, a real estate and insurance broker of South Boston, and the article was substantially true, except that he should have been called A. P. H. Hanson instead of H. P. Hanson. The plaintiff, H. P. Hanson, is also a real estate and insurance broker in South Boston, and in writing the article the reporter used his name by mistake.^[427] The justice of the Superior Court, before whom the case was tried, without a jury, “found as a fact that the alleged libel 666declared on by the plaintiff was not published by the defendant of or concerning the plaintiff,” and the only question in the case is whether this finding was erroneous as matter of law.

In every action of this kind the fundamental question is, What is the meaning of the author of the alleged libel or slander, conveyed by the words used interpreted in the light of all the circumstances? The reason of this is obvious. Defamatory language is harmful only as it purports to be the expression of the thought of him who uses it. In determining the effect of a slander the questions involved are, What is the thought intended to be expressed, and how much credit should be given to him who expresses it? The essence of the wrong is the expression of what purports to be the knowledge or opinion of him who utters the defamatory words, or of some one else whose language he repeats. His meaning, to be ascertained in a proper way, is what gives character to his act, and makes it innocent or wrongful. The damages depend chiefly upon the weight which is to be given to his expression of his meaning, and all the questions relate back to the ascertainment of his meaning.

In the present case we are concerned only with the meaning of the defendant in regard to the person to whom the language of the published article was to be applied, and the question to be decided is, How may his meaning legitimately be ascertained? Obviously, in the first place, from the language used; and in construing and applying the language, the circumstances under which it was written and the facts to which it relates are to be considered, so far as they can readily be ascertained by those who read the words, and who attempt to find out the meaning of the author in regard to the person of whom they were written. It has often been said that the meaning of the language is not necessarily that which it may seem to have to those who read it as strangers, without knowledge of facts and circumstances which give it color and aid in its interpretation, but that which it has when read in the light of events which have relation to the utterance or publication of it.

For the purposes of this case it may be assumed, in favor of the plaintiff, that if the language used in a particular case, interpreted in the light of such events and circumstances attending the publication of it as could readily be ascertained by the public, is free from ambiguity in regard to the person referred to, and points clearly to a well known person, it would be held to have been published concerning that person, although the defendant should show that through some mistake of fact, not easily discoverable by the public, he had designated in his publication a person other than the one whom he intended to designate. It may well be held that where the language, read in connection with all the facts and circumstances which can be used in its interpretation, is free from ambiguity, the defendant will not be permitted to show that through ignorance or mistake he said 667something, either by way of designating the person, or making assertions about him, different from that which he intended to say; but his true meaning should be ascertained, if it can be, with the aid of such facts and circumstances attending the publication as may easily be known by those of the public who wish to discover it.

Whether the defendant should ever be permitted to state his undisclosed intention in regard to the person of whom the words are used, may be doubtful. If language purporting to be used of only one person would refer equally to either of two different persons of the same name, and if there were nothing to indicate that one was meant rather than the other, there is good reason for holding that the defendant’s testimony in regard to his secret intention might be received, but perhaps such a case is hardly supposable. Odgers, in his book on Libel and Slander, at page 129, says: “So, if the words spoken or written, though plain in themselves, apply equally well to more persons than one, evidence may be given both of the cause and occasion of publication, and of all the surrounding circumstances affecting the relation between the parties, and also any statement or declaration made by the defendant as to the person referred to.” In Regina v. Barnard, 43 J. P. 127, when it was uncertain whether the libel referred to the complainant or not, and when the language was applicable to him, Lord Chief Justice Cockburn held the affidavit of the writer that he did not mean him, but some one else, to be a sufficient reason for refusing process. In De Armond v. Armstrong, 37 Ind. 35, evidence was received of what the witnesses understood in regard to the person referred to. In Smart v. Blanchard, 42 N. H. 137, it is stated that extrinsic evidence is to be received “to show that the defendant intended to apply his remarks to the plaintiff,” when his meaning is doubtful. Goodrich v. Davis, 11 Met. 473, 480, 484, 485, and Miller v. Butler, 6 Cush. 71, are of similar purport. See also Barwell v. Adkins, 1 M. & G. 807; Knapp v. Fuller, 55 Vt. 311; Commonwealth v. Morgan, 107 Mass. 199, 201.

If the defendant’s article had contained anything libellous against A. P. H. Hanson, there can be no doubt that he could have maintained an action against the defendant for this publication. The name used is not conclusive in determining the meaning of the libel in respect to the person referred to; it is but one fact to be considered with other facts upon that subject. Fictitious names are often used in libels, and names similar to that of the person intended, but differing somewhat from it. A. P. H. Hanson could have shown that the description of him by name, residence, and occupation was perfect, except in the use of the initials “H. P.” instead of “A. P. H.,” that the article referred to an occasion on which he was present, and gave a description of conduct of a prisoner, and of proceedings in court, which was correct in its application to him and to no one else. The internal evidence when applied to facts well known to the public would have 668been ample to show that the language referred to him, and not to the person whose name was used.

So, in the present suit, the court had no occasion to rely on the testimony of the writer as to the person to whom the language was intended to apply. The language itself, in connection with the publicly known circumstances under which it was written, showed at once that the article referred to A. P. H. Hanson, and that the name H. P. Hanson was used by mistake. As the evidence showed that the words were published of and concerning A. P. H. Hanson, the finding that they were not published of the plaintiff followed of necessity. The article was of such a kind that it referred, and could refer, to one person only; when that person was ascertained, it might appear that the publication as against him was or was not libellous, and his rights, if he brought a suit, would depend upon the finding in respect to that. No one else would have a cause of action, even if, by reason of identity of name with that used in the publication, he might suffer some harm. For illustration, suppose a libel is written concerning a person described as John Smith of Springfield. Suppose there are five persons in Springfield of that name. The language refers to but one. When we ascertain by legitimate evidence to which one the words are intended to apply, he can maintain an action. The other persons of the same name cannot recover damages for a libel merely because of their misfortune in having a name like that of the person libelled. Or, if the defendant can justify by proving that the words were true, and published without malice, he is not guilty of a libel, even if, written of other persons of the same name of whose existence very likely he was ignorant, the words would be libellous; otherwise, one who has published that which by its terms can refer to but one person, and be a libel on him only, might be responsible for half a dozen libels on as many different persons, and one who has justifiably published the truth of a person might be liable to several persons of the same name of whom the language would be untrue. The law of libel has never been extended, and should not be extended, to include such cases.

Whether there should be a liability founded on negligence in any case when the truth is published of one to whom the words, interpreted in the light of accompanying circumstances easily ascertainable by those who read them, plainly apply; and where, by reason of identity of names, or similarity of names and description, a part of the public might think them applicable to another person of whom they would be libellous, is a question which does not arise on the pleadings in this case. So far as we are aware, no action for such a cause has ever been maintained. It is ordinarily to be presumed, although it may not always be the fact, that those who are enough interested in a person to be affected by what is said about him, will ascertain, if they easily can, whether libellous words which purport to refer 669to one of his name were intended to be applied to him or to some one else.

The question in this case, whether the words were published of and concerning the plaintiff, was one of fact on all the evidence. Unless it appears that the matters stated in the report would not warrant a finding for the defendant, there must be judgment for him, even if the finding of fact might have been the other way. We are of opinion that the finding was well warranted, and there must be,

Judgment on the finding.

Holmes, J. I am unable to agree with the decision of the majority of the court, and as the question is of some importance in its bearing on legal principles, and as I am not alone in my views, I think it proper to state the considerations which have occurred to me.

Those words [H. P. Hanson, a real estate and insurance broker of South Boston] describe the plaintiff, and no one else. The only ground, then, on which the matters alleged of and concerning that subject can be found not to be alleged of and concerning the plaintiff, is that the defendant did not intend them to apply to him, and the question is narrowed to whether such a want of intention is enough to warrant the finding, or to constitute a defence, when the inevitable consequence of the defendant’s acts is that the public, or that part of it which knows the plaintiff, will suppose that the defendant did use its language about him.

On general principles of tort, the private intent of the defendant would not exonerate it. It knew that it was publishing statements purporting to be serious, which would be hurtful to a man if applied to him. It knew that it was using as the subject of those statements words which purported to designate a particular man, and would be understood by its readers to designate one. In fact, the words purported to designate, and would be understood by its readers to designate, the plaintiff. If the defendant had supposed that there was no such person, and had intended simply to write an amusing fiction, that would not be a defence, at least unless its belief was justifiable. Without special reason, it would have no right to assume that there was no one within the sphere of its influence to whom the description answered. So, when the description which points out the plaintiff is supposed by the defendant to point out another man whom in fact it does not describe, the defendant is equally liable as when the description is supposed to point out nobody. On the general principles of tort, the publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it.

A man may be liable civilly, and formerly, at least by the common law of England, even criminally, for publishing a libel without knowing it. Curtis v. Mussey, 6 Gray, 261; Commonwealth v. Morgan, 670107 Mass. 199; Dunn v. Hall, 1 Ind. 344; Rex v. Walter, 3 Esp. 21; Rex v. Gutch, Mood. & Malk. 433. See also Rex v. Cuthell, 27 St. Tr. 642. And it seems he might be liable civilly for publishing it by mistake, intending to publish another paper. Mayne v. Fletcher, 4 Man. & Ry. 311, 312, note. Odgers, Libel and Slander, (2d ed.) 5. So, when by mistake the name of the plaintiff’s firm was inserted under the head “First Meetings under the Bankruptcy Act,” instead of under “Dissolution of Partnerships.” Shepheard v. Whitaker, L. R. 10 C. P. 502. So a man will be liable for a slander spoken in jest, if the by-standers reasonably understand it to be a serious charge. Donoghue v. Hayes, Hayes, 265. Of course it does not matter that the defendant did not intend to injure the plaintiff, if that was the manifest tendency of his words. Curtis v. Mussey, 6 Gray, 261, 273; Haire v. Wilson, 9 B. & C. 643. And to prove a publication concerning the plaintiff, it lies upon him “only to show that this construction, which they’ve put upon the paper, is such as the generality of readers must take it in, according to the obvious and natural sense of it.” The King v. Clerk, 1 Barnard. 304, 305. See further Fox v. Broderick, 14 Ir. C. L. 453; Odgers, Libel and Slander, (2d ed.) 155, 269, 435, 638. In Smith v. Ashley, 11 Met. 367, the jury were instructed that the publisher of a newspaper article written by another, and supposed and still asserted by the defendant to be a fiction, was not liable if he believed it to be so. Under the circumstances of the case, “believed” meant “reasonably believed.” Even so qualified, it is questioned by Mr. Odgers if the ruling would be followed in England. Odgers, Libel and Slander, (1st Am. ed.) 387, (2d ed.) 638. But it has no application to this case, as here the defendant’s agent wrote the article, and there is no evidence that he or the defendant had any reason to believe that H. P. Hanson meant any one but the plaintiff.

The foregoing decisions show that slander and libel now, as in the beginning, are governed by the general principles of the law of tort, and, if that be so, the defendant’s ignorance that the words which it published identified the plaintiff is no more an excuse, than ignorance of any other fact about which the defendant has been put on inquiry. To hold that a man publishes such words at his peril, when they are supposed to describe a different man, is hardly a severer application of the law, than when they are uttered about a man believed on the strongest grounds to be dead, and thus not capable of being the subject of a tort. It has been seen that by the common law of England such a belief would not be an excuse. Hearne v. Stowell, 12 A. & E. 719, 726, denying Parson Prick’s case.

I feel some difficulty in putting my finger on the precise point of difference between the minority and majority of the court. I understand, however, that a somewhat unwilling assent is yielded to the general views which I have endeavored to justify, and I should gather 671that the exact issue was to be found in the statement that the article was one describing the conduct of a prisoner brought before the Municipal Court of Boston, coupled with the later statement that the language, taken in connection with the publicly known circumstances under which it was written, showed at once that the article referred to A. P. H. Hanson, and that the name of H. P. Hanson was used by mistake. I have shown why it seems to me that these statements are misleading. I only will add on this point, that I do not know what the publicly known circumstances are. I think it is a mistake of fact to suppose that the public generally know who was before the Municipal Criminal Court on a given day. I think it is a mistake of law to say that, because a small part of the public have that knowledge, the plaintiff cannot recover for the harm done him in the eyes of the greater part of the public, probably including all his acquaintances who are ignorant about the matter, and I also think it no sufficient answer to say that they might consult the criminal records, and find out that probably there was some error. Blake v. Stevens, 4 F. & F. 232, 240. If the case should proceed further on the facts, it might appear that, in view of the plaintiff’s character and circumstances, all who knew him would assume that there was a mistake, that the harm to him was merely nominal, and that he had been too hasty in resorting to an action to vindicate himself. But that question is not before us.

With reference to the suggestion that, if the article, in addition to what was true concerning A. P. H. Hanson, had contained matter which was false and libellous as to him, he might have maintained an action, it is unnecessary to express an opinion. I think the proposition less obvious than that the plaintiff can maintain one. If an article should describe the subject of its statements by two sets of marks, one of which identified one man and one of which identified another, and a part of the public naturally and reasonably were led by the one set to apply the statements to one plaintiff, and another part were led in the same way by the other set to apply them to another, I see no absurdity in allowing two actions to be maintained. But that is not this case.

Even if the plaintiff and A. P. H. Hanson had borne the same name, and the article identified its subject only by a proper name, very possibly that would not be enough to raise the question. For, as every one knows, a proper name always purports to designate one person and no other, and although, through the imperfection of our system of naming, the same combination of letters and sounds may be applied to two or more, the name of each, in theory of law, is distinct, although there is no way of finding out which person was named but by inquiring which was meant. “Licet idem sit nomen, tamen diversum est propter diversitatem personæ.” Bract. fol. 190 a. Commonwealth v. Bacon, 135 Mass. 521, 525. Cocker v. Crompton, 1 B. 672& C. 489. In re Cooper, 20 Ch. D. 611. Mead v. Phenix Ins. Co., 158 Mass. 124, 125. Kyle v. Kavanagh, 103 Mass. 356. Raffles v. Wichelhaus, 2 H. & C. 906.

Mr. Justice Morton and Mr. Justice Barker agree with this opinion.^[428]

PECK v. TRIBUNE COMPANY Supreme Court of the United States, May 17, 1909. Reported in 214 United States Reports, 185.

Mr. Justice Holmes delivered the opinion of the court.

This is an action on the case for a libel. The libel alleged is found in an advertisement printed in the defendant’s newspaper, The Chicago Sunday Tribune, and so far as is material is as follows: “Nurse and Patients Praise Duffy’s—Mrs. A. Schuman, One of Chicago’s Most Capable and Experienced Nurses, Pays an Eloquent Tribute to the Great Invigorating, Life-Giving and Curative Properties of Duffy’s Pure Malt Whiskey....” Then followed a portrait of the plaintiff, with the words “Mrs. A. Schuman” under it. Then, in quotation marks, “After years of constant use of your Pure Malt Whiskey, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it as the very best tonic and stimulant for all weak and rundown conditions,” &c., &c., with the words “Mrs. A. Schuman, 1576 Mozart St., Chicago, Ill.,” at the end, not in quotation marks, but conveying the notion of a signature, or at least that the words were hers. The declaration alleged that the plaintiff was not Mrs. Schuman, was not a nurse, and was a total abstainer from whiskey and all spirituous liquors. There was also a count for publishing the plaintiff’s likeness without leave. The defendant pleaded not guilty. At the trial, subject to exceptions, the judge excluded the plaintiff’s testimony in support of her allegations just stated, and directed a verdict for the defendant. His action was sustained by the Circuit Court of Appeals, 154 Fed. Rep. 330; S. C., 83 C. C. A. 202.

Of course the insertion of the plaintiff’s picture in the place and with the concomitants that we have described imported that she was the nurse and made the statements set forth, as rightly was decided in Wandt v. Hearst’s Chicago American, 129 Wisconsin, 419, 421. Morrison v. Smith, 177 N. Y. 366. Therefore the publication was of and concerning the plaintiff, notwithstanding the presence of another fact, the name of the real signer of the certificate, if that was Mrs. Schuman, 673that was inconsistent, when all the facts were known, with the plaintiff’s having signed or adopted it. Many might recognize the plaintiff’s face without knowing her name, and those who did know it might be led to infer that she had sanctioned the publication under an alias. There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff’s portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous the defendant took the risk. As was said of such matters by Lord Mansfield, “Whatever a man publishes he publishes at his peril.” The King v. Woodfall, Lofft, 776, 781. See further Hearne v. Stowell, 12 A. & E. 719, 726; Shepheard v. Whitaker, L. R. 10 C. P. 502; Clark v. North American Co., 203 Pa. St. 346, 351, 352. The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else. See Morasse v. Brochu, 151 Massachusetts, 567, 575.

The question, then, is whether the publication was a libel. It was held by the Circuit Court of Appeals not to be, or at most to entitle the plaintiff only to nominal damages, no special damage being alleged. It was pointed out that there was no general consensus of opinion that to drink whiskey is wrong or that to be a nurse is discreditable. It might have been added that very possibly giving a certificate and the use of one’s portrait in aid of an advertisement would be regarded with irony, or a stronger feeling, only by a few. But it appears to us that such inquiries are beside the point. It may be that the action for libel is of little use, but while it is maintained it should be governed by the general principles of tort. If the advertisement obviously would hurt the plaintiff in the estimation of an important and respectable part of the community, liability is not a question of a majority vote.

We know of no decision in which this matter is discussed upon principle. But obviously an unprivileged falsehood need not entail universal hatred to constitute a cause of action. No falsehood is thought about or even known by all the world. No conduct is hated by all. That it will be known by a large number and will lead an appreciable fraction of that number to regard the plaintiff with contempt is enough to do her practical harm. Thus if a doctor were represented as advertising, the fact that it would affect his standing with others of his profession might make the representation actionable, although advertising is not reputed dishonest and even seems to be regarded by many with pride. See Martin v. The Picayune, 115 Louisiana, 979. It seems to us impossible to say that the obvious tendency of what is imputed to the plaintiff by this advertisement is 674not seriously to hurt her standing with a considerable and respectable class in the community. Therefore it was the plaintiff’s right to prove her case and go to the jury, and the defendant would have got all that it could ask if [it] had been permitted to persuade them, if it could, to take a contrary view. Culmer v. Canby, 101 Fed. Rep. 195, 197; Twombly v. Monroe, 136 Massachusetts, 464, 469. See Gates v. New York Recorder Co., 155 N. Y. 228.

It is unnecessary to consider the question whether the publication of the plaintiff’s likeness was a tort per se. It is enough for the present case that the law should at least be prompt to recognize the injuries that may arise from an unauthorized use in connection with other facts, even if more subtilty is needed to state the wrong than is needed here. In this instance we feel no doubt.

Judgment reversed.^[429]

E. HULTON AND COMPANY v. JONES In the House of Lords, December 6, 1909. Reported in [1909] Appeal Cases, 20.

The following statement is taken from the opinion of Lord Alverstone, C. J., in the Court of Appeal.^[430]

“The action was brought by the plaintiff, a member of the Bar, in respect of a libel published in the Sunday Chronicle on July 12, 1908 (the passages complained of are set out in the statement of claim), which appeared in an article in the defendants’ paper purporting to describe what the Paris correspondent of the paper had witnessed at Dieppe, and the particular passage on which the question really turns was in these words: ‘“Whist! there is Artemus Jones with a woman who is not his wife, who must be, you know—the other thing!” whispers a fair neighbor of mine excitedly into her bosom friend’s ear. Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad?’ It was alleged by the plaintiff that this passage was a libel upon him.

“The material facts which were proved in evidence at the trial were as follows. The plaintiff, whose real name is Thomas Jones, is thirty-seven years old, and since the year 1901 has been a member of the Bar, practising on the North Wales Circuit. His baptismal name was Thomas Jones, but ever since he was at school he has been known by 675the name of Artemus Jones or Thomas Artemus Jones. He was confirmed in the latter name in the year 1886, and it appears to have been given him by his father in order to distinguish him from other persons of the name of Jones. The defendants alleged that the name was used as a fictitious name adopted by the writer of the article without any knowledge of the existence of the plaintiff or of any person named Artemus Jones; and both the writer and the editor, who were called as witnesses by the defendants under circumstances to which I shall have to refer, stated that they had no knowledge whatever of the plaintiff, and had no intention to refer to him, and that so far as they were concerned the name was entirely an imaginary name. The counsel for the plaintiff accepted the explanation given by the writer, Mr. Dawbarn, and the editor, Mr. Woodbridge, and expressly stated that he did not, after their evidence, allege that they or either of them were in fact actuated by malice, or intended to refer to the plaintiff in their article. Some question was raised both at the trial and on the appeal before us as to the possibility of there being other individuals in the employment of the defendant company who were actuated by express malice towards the plaintiff, but for the purpose of my judgment I assume that there was no proof of malice in fact on the part of any agent or servant of the defendants. The plaintiff called five witnesses who stated that upon reading the article they thought that it referred to the plaintiff, and the plaintiff was prepared to call further witnesses to give evidence to the same effect, but, at the suggestion of the learned judge, he abstained from calling them....

“At the conclusion of the plaintiff’s case, Mr. Langdon, who was then the leading counsel for the defendants, submitted that, as the name Artemus Jones was a fictitious name, coined by the writer of the article, and not intended to refer to any particular individual at all, it was not a libel on anybody, and a fortiori not on the plaintiff himself. In support of this contention the case of Harrison v. Smith, 20 L. T. (N. S.) 713, was at that stage of the proceedings cited to the learned judge. He ruled that, if a person chooses to publish a thing of this description, the question is not whether the man really intended it, but whether it would be understood by readers to apply to a particular person, adding that, if sensible readers would see at once that it was only an imaginary thing, if any one reading it would see that it did not refer to a gentleman who happened to bear the name of Artemus Jones, it would not be a libel, but if he would think the contrary, that it did not refer to an imaginary person, but to a real individual, the action might be maintained.”

It also appeared that up to the year 1901 plaintiff had contributed signed articles to defendants’ newspaper.

At the trial before Channell, J., the plaintiff had a verdict for £1750, upon which judgment was rendered. Defendants appealed.

676The Court of Appeal (Lord Alverstone, C. J., and Farwell, L. J.,—Fletcher Moulton, L. J., dissenting) dismissed the appeal. Jones v. E. Hulton & Co., [1909] 2 K. B. 444.

Defendants then appealed to the House of Lords.

Lord Loreburn, L. C. My Lords, I think this appeal must be dismissed. A question in regard to the law of libel has been raised which does not seem to me to be entitled to the support of your Lordships. Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot show that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words.

It is suggested that there was a misdirection by the learned judge in this case. I see none. He lays down in his summing up the law as follows: “The real point upon which your verdict must turn is, ought or ought not sensible and reasonable people reading this article to think that it was a mere imaginary person such as I have said—Tom Jones, Mr. Pecksniff as a humbug, Mr. Stiggins, or any of that sort of names that one reads of in literature used as types? If you think any reasonable person would think that, it is not actionable at all. If, on the other hand, you do not think that, but think that people would suppose it to mean some real person—those who did not know the plaintiff of course would not know who the real person was, but those who did know of the existence of the plaintiff would think that it was the plaintiff—then the action is maintainable, subject to such damages as you think under all the circumstances are fair and right to give to the plaintiff.”

I see no objection in law to that passage. The damages are certainly heavy, but I think your Lordships ought to remember two 677things. The first is that the jury were entitled to think, in the absence of proof satisfactory to them (and they were the judges of it), that some ingredient of recklessness, or more than recklessness, entered into the writing and the publication of this article, especially as Mr. Jones, the plaintiff, had been employed on this very newspaper, and his name was well known in the paper and also well known in the district in which the paper circulated. In the second place the jury were entitled to say this kind of article is to be condemned. There is no tribunal more fitted to decide in regard to publication, especially publications in the newspaper Press, whether they bear a stamp and character which ought to enlist sympathy and to secure protection. If they think that the license is not fairly used and that the tone and style of the libel is reprehensible and ought to be checked, it is for the jury to say so; and for my part, although I think the damages are certainly high, I am not prepared to advise your Lordships to interfere, especially as the Court of Appeal have not thought it right to interfere, with the verdict.

Lords Atkinson, Gorell, and Shaw of Dunfermline concurred.

Appeal dismissed.^[431]

McPHERSON v. DANIELS In the King’s Bench, Michaelmas Term, 1829. Reported in 10 Barnewall & Cresswell, 263.

Slander for an imputation of insolvency. The defendant pleaded that at the time of uttering the said words he declared that he had heard and been told the same from and by one T. W. Woor. General demurrer.^[432]

Littledale, J. For the reasons already given by my Brother Bayley, I think that the plea is bad; but with reference to the resolution in Lord Northampton’s case, I will say a few words. That resolution has been frequently referred to within the last thirty years, and though not expressly overruled has been generally disapproved of. The latter part of that resolution is extrajudicial, for it was not necessary to come to any resolution respecting private slander in the Star Chamber. It is somewhat inconsistent with the third resolution, where it is laid down, “that if one hear false and horrible rumors, either of the king or of any of the grandees, it is not lawful for him to relate to others that he heard J. S. say such false and horrible words, for if it should be lawful, by this means they may be published generally.” 678It was resolved then, that in the case of scandalum magnatum it was not lawful to repeat slander, because, if it was, it might circulate generally. Now the same inconvenience, viz. the general publication of slander, though differing in degree, would follow from the repetition of slander in either case. The fourth resolution, however, in terms, perhaps does not go the length of saying that a defendant may justify the repetition of slander generally, but only that he may justify under certain circumstances. Assuming that it imports that a defendant may justify the repetition of slander generally, by showing that he named his original author, I think that it is not law.

The declaration, which contains a technical statement of the facts necessary to support the action, alleges that the defendant falsely and maliciously published the slander to the plaintiff’s damage. In order to maintain such an action, there must be malice in the defendant and a damage to the plaintiff, and the words must be untrue. Where words, falsely and maliciously spoken, as in this case, are actionable in themselves, the law prima facie presumes a consequent damage without proof. In other cases actual damage must be proved. To constitute a good defence, therefore, to such an action, where the publication of the slander is not intended to be denied, the defendant must negative the charge of malice (which in its legal sense denotes a wrongful act done intentionally without just cause or excuse), or show that the plaintiff is not entitled to recover damages. It is competent to a defendant, upon the general issue, to show that the words were not spoken maliciously; by proving that they were spoken on an occasion, or under circumstances which the law, on grounds of public policy, allows, as in the course of a parliamentary or judicial proceeding, or in giving the character of a servant. But if the defendant relies upon the truth as an answer to the action, he must plead that matter specially; because the truth is an answer to the action, not because it negatives the charge of malice (for a person may wrongfully or maliciously utter slanderous matter though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not, to possess. Now, a defendant, by showing that he stated at the time when he published slanderous matter of a plaintiff, that he heard it from a third person does not negative the charge of malice, for a man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion. Such a plea does not show that the slander was published on an occasion, or under circumstances which the law, on grounds of public policy, allows. Nor does it show that the plaintiff has not sustained, or is not entitled in a court of law to recover, damages. As great an injury may accrue from the wrongful repetition, as from the first publication of slander, the first utterer may have been a person insane, 679or of bad character. The person who repeats it gives greater weight to the slander. A party is not the less entitled to recover damages in a court of law for injurious matter published concerning him, because another person previously published it. That shows not that the plaintiff has been guilty of any misconduct which renders it unfit that he should recover damages in a court of law, but that he has been wronged by another person as well as the defendant; and may, consequently if the slander was not published by the first utterer on a lawful occasion, have an action for damages against that person as well as the defendant. It seems to me, therefore, that such a plea is not an answer to an action for slander, because it does not negative the charge of malice, nor does it show that the plaintiff is not entitled to recover damages.

Judgment for plaintiff.^[433]

THORLEY v. LORD KERRY In the Exchequer Chamber, May 9, 1812. Reported in 4 Taunton, 355.

This was a writ of error brought to reverse a judgment of the Court of King’s Bench. “This was an action for a libel contained in a letter addressed to Lord Kerry, and sent open by one of his servants, who became acquainted with its contents. The libel charged his Lordship with being a hypocrite, and using the cloak of religion for unworthy purposes.”^[434] Upon not guilty pleaded, the cause was tried at the Surrey spring assizes, 1809, when the writing of the letter by the defendant was proved, and that he delivered it unsealed to a servant to carry, who opened and read it; a verdict was found for the plaintiff with £20 damages, and judgment passed for the plaintiff without 680argument in the court below. The plaintiff in error assigned the general errors.

Mansfield, C. J., delivered the opinion of the court.

This is a writ of error, brought to reverse a judgment of the Court of King’s Bench, in which there was no argument. It was an action on a libel published in a letter which the bearer of the letter happened to open. The declaration has certainly some very curious recitals. It recites that the plaintiff was tenant to Archibald Lord Douglas of a messuage in Petersham; that, being desirous to become a parishioner and to attend the vestry, he agreed to pay the taxes of the said house, that the plaintiff in error was churchwarden, and that the defendant in error gave him notice of his agreement with Lord Douglas; and that the plaintiff in error, intending to have it believed that the said earl was guilty of the offences and misconducts thereinafter mentioned (offences there are none, misconduct there may be), wrote the letter to the said earl which is set forth in the pleadings. There is no doubt that this was a libel, for which the plaintiff in error might have been indicted and punished; because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken, would not be of themselves sufficient to support an action. But the question now is, whether an action will lie for these words so written, notwithstanding such an action would not lie for them if spoken; and I am very sorry it was not discussed in the Court of King’s Bench, that we might have had the opinion of all the twelve judges on the point, whether there be any distinction as to the right of action between written and parol scandal; for myself, after having heard it extremely well argued, and especially, in this case, by Mr. Barnewall, I cannot, upon principle, make any difference between words written and words spoken, as to the right which arises on them of bringing an action. For the plaintiff in error it has been truly urged, that in the old books and abridgments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slander as far back as Charles the Second’s time, and the difference has been recognized by the courts for at least a century back. It does not appear to me that the rights of parties to a good character are insufficiently defended by the criminal remedies which the law gives, and the law gives a very ample field for retribution by action for words spoken in the cases of special damage, of words spoken of a man in his trade or profession, of a man in office, of a magistrate or officer; for all these an action lies. But for mere general abuse spoken, no action lies. In the arguments both of the judges and counsel, in 681almost all the cases in which the question has been, whether what is contained in a writing is the subject of an action or not, it has been considered whether the words, if spoken, would maintain an action. It is curious that they have also adverted to the question, whether it tends to produce a breach of the peace; but that is wholly irrelevant, and is no ground for recovering damages. So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is, therefore, actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter; it is true that a newspaper may be very generally read, but that is all casual. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal; but that distinction has been established by some of the greatest names known to the law, Lord Hardwicke, Hale, I believe Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid it down that an action for a libel may be brought on words written, when the words, if spoken, would not sustain it. Com. Dig. tit. Libel, referring to the case in Fitzg. 122, 253, says there is a distinction between written and spoken scandal; by his putting it down there as he does, as being the law, without making any query or doubt upon it, we are led to suppose that he was of the same opinion. I do not now recapitulate the cases, but we cannot, in opposition to them, venture to lay down at this day that no action can be maintained for any words written, for which an action could not be maintained if they were spoken; upon these grounds we think the judgment of the Court of King’s Bench must be affirmed. The purpose of this action is to recover a compensation for some damage supposed to be sustained by the plaintiff by reason of the libel. The tendency of the libel to provoke a breach of the peace, or the degree of malignity which actuates the writer, has nothing to do with the question. If the matter were for the first time to be decided at this day, I should have no hesitation in saying that no action could be maintained for written scandal which could not be maintained for the words if they had been spoken.

Judgment affirmed.^[435]

682

WEBB v. BEAVAN In the Queen’s Bench Division, May 10, 1883. Reported in 11 Queen’s Bench Division, 609.

Demurrer to a statement of claim which alleged that the defendant falsely and maliciously spoke and published of the plaintiff the words following: “I will lock you” (meaning the plaintiff) “up in Gloucester Gaol next week. I know enough to put you” (meaning the plaintiff) “there,” meaning thereby that the plaintiff had been and was guilty of having committed some criminal offence or offences. The plaintiff claimed £500 damages.

Demurrer, on the ground that the statement of claim did not allege circumstances showing that the defendant had spoken or published of the plaintiff any actionable language, and that no cause of action was disclosed. Joinder in demurrer.

W. H. Nash, in support of the demurrer, contended that, in order to make the words actionable, the innuendo should have alleged that they imputed an offence for which the plaintiff could have been indicted, and that it was not sufficient to allege that they imputed a criminal offence merely. He referred to Odgers on Libel and Slander, p. 54.

Hammond Chambers, contra, contended that, according to the earlier authorities, the test, in ascertaining whether words were actionable per se, was whether the offence imputed was punishable corporally or by fine, and that it was not necessary to allege that the words imputed an indictable offence. He cited Com. Dig. tit. Action on the Case for Defamation, D. 5 and 9; Curtis v. Curtis, 10 Bing. 477.

Pollock, B. I am of opinion that the demurrer should be overruled. The expression “indictable offence” seems to have crept into the text-books, but I think the passages in Comyns’ Digest are conclusive to show that words which impute any criminal offence are actionable per se. The distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he can be made to suffer corporally.

683Lopes, J. I am of the same opinion. I think it is enough to allege that the words complained of impute a criminal offence. A great number of offences which were dealt with by indictment twenty years ago are now disposed of summarily, but the effect cannot be to alter the law with respect to actions for slander.

Demurrer overruled.^[436]

BROOKER v. COFFIN Supreme Court, New York, November, 1809. Reported in 5 Johnson, 188.

Spencer, J., delivered the opinion of the court.^[437] The first count is for these words, “She is a common prostitute, and I can prove it;” and the question arises, whether speaking these words gives an action 684without alleging special damage.^[438] By the statute (1 R. L. 124), common prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labor for a period not exceeding sixty days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common prostitute, was charging her with such an offence as would give an action for the slander. The same statute which authorizes the infliction of imprisonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to have skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases. In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable;^[439] and Baron Comyns considers the test to be, whether the crime is indictable or not. 1 Com. tit. Action on the Case for Defamation, F, 20. There is not, perhaps, so much uncertainty in the law upon any subject as when words shall be in themselves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty, 685and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective.

The defendant must, therefore, have judgment.^[440]

COOPER v. SEAVERNS Supreme Court, Kansas, December 11, 1909. Reported in 81 Kansas Reports, 267.

Burch, J.^[441] The common law of England was that verbal imputations of unchaste conduct on the part of a female were not actionable, in the absence of special damages, unless they related to a person in some office or employment for which morality and virtue were qualifications (Folkhard, Law Slan. & Lib. 7th ed., p. 43), and except in the local courts of the city of London, the borough of Southwark and the city of Bristol, where it was the custom to whip strumpets at cart’s tail, tingling a basin before them (Odgers, Lib. & Slan., p. *84). This rule has been accounted for on the supposition that in the early, formative days of the common law social relations were rude, manners were unrefined, and the people were accustomed to hearing gross and vulgar epithets freely tossed about without regarding them seriously. (Odgers, Lib. & Slan., p. *86.) The case of Oxford & ux. v. Cross, in the king’s bench, Trinity term, 41 Elizabeth (1599), Coke’s Reports (vol. 2, p. 307; part 4, p. 18a), is cited in support of this view, wherein it was said that a custom “to maintain actions for such brabling words is against law.” Pollock and Maitland discover a better state of civilization from the early records than the view indicated takes for granted:

“We should be much mistaken, however, if we believed that the temporal law of the middle ages gave no action to the defamed. Nothing could be less true than that our ancestors in the days of their barbarism could only feel blows and treated hard words as of no account. Even the rude lex Salica decrees that if one calls a man ‘wolf’ or ‘hare’ one must pay him three shillings, while if one calls a woman ‘harlot’ and cannot prove the truth of the charge, one must pay her forty-five shillings. The oldest English laws exact bot and wite if one gives another bad names....”

This being true, a reason for the rule must be found elsewhere than in any essential brutality of the early Englishman. The doctrine appears to be 686fully accounted for through the partition of authority in England between the spiritual and the temporal courts. (Odgers, Lib. & Slan., p. *86.) It is familiar history that in the middle ages, for reasons and by means which need not be sketched here, the all-powerful ecclesiastics acquired jurisdiction over a large portion of the most important concerns of life—testaments, matrimony, and among innumerable others, defamation. This breach of the social order was regarded as a sin and was punishable in the spiritual courts as such....

The struggle to limit and define the authority of the ecclesiastical courts was long and bitter, and frequently exhibited some striking features. In the progress of the duel the common-law courts used as their principal weapon the king’s writ of prohibition to restrain the exercise of jurisdiction over causes which they desired to adjudicate. The ecclesiastics returned the fire by excommunicating those who sued out such writs. By and by an increasing number of pecuniary matters came to be regarded as pertaining to things of this world, and the civil courts finally succeeded in maintaining their right to administer relief in an action on the case where specific damages were occasioned by slanderous words.

[After discussing the jurisdiction of the ecclesiastical courts, the opinion proceeds:]

Although the English judges felt constrained to follow the common-law rule until it was superseded by act of parliament, it did not satisfy their consciences. In 1759, in the case of Jones v. Herne, in the Court of King’s Bench (2 Wil. 87, 95 Eng. Rep., Full Reprint, 701), Chief Justice Willes, after holding it actionable to say a man is a forger, added that if it were res integra he would hold that calling a man a rogue or a woman a whore in public company is actionable.

Very near the time when this state entered upon its separate constitutional existence the common-law rule fell under the censure of some of the ablest exponents of English justice.

[The opinion then sets forth a number of judicial criticisms of the common-law doctrine and proceeds:]

From the foregoing it appears that the rule under consideration resulted solely from the early seizure of jurisdiction over slander by the ecclesiastical courts, which could not award damages at all, and the inability of the temporal courts to strip that jurisdiction from their rivals except in cases involving special damages. It never did rest upon any principle of right or justice or any decent regard for character. It was unsuited to the true genius and real needs of the people over whom it tyrannized, even from the earliest times. It created anomalies in the law of defamation which rendered that law absurd and grotesque. For example, words “touching” some disreputable good-for-nothing in his work or trade were actionable. The most sensitive, cultivated, high-bred woman could be foully slandered with impunity. Written ridicule of the style of her hat gave ground for exemplary damages. She had no redress for spoken words inflicting one of the deepest wounds her sex can suffer. The rule was not merely insufferably wrong; it was wrong in a matter of so precious a nature that it was shocking. It was suppressed because it had long been reprobated as odious and was universally detested. The question now to be decided is, Does that rule obtain in this state?...

This is not the case of a principle which commands considerable approval, is founded upon fair reason, is merely of questionable wisdom, and which 687therefore ought to be followed until abrogated by the legislature. It is the case of an outlawed rule of negation whose sole function has always been to thwart natural justice in one of the dearest and tenderest of human interests. Therefore its rejection is justified by Duncan v. Baker (21 Kan. 99) and Whitaker v. Hawley (25 Kan. 674), supra.

The world is censorious, and a woman’s or a maiden’s reputation for modesty and chastity is an asset of inestimable value. Its loss renders her poor indeed. Injury in fact is the necessary result of such a deprivation, whether or not the sufferer can point to specific damage in a few paltry dollars or to liability to a trifling fine if the charge were true. Therefore the pleading of special damages as a basis for relief ought to be treated as a useless fiction, like the one condemned in Anthony v. Norton (60 Kan. 341), supra.

Taking into consideration the origin and history of the rule, the reason supporting it, its character, its consequences, and the degree of its appositeness to our constitution and system of laws, it does not apply to the conditions or meet the needs of the people of this state, and consequently it is not a part of the law of this state.

This problem has been met and solved by different states of the American Union in different ways. In some the rule is obediently observed. In some it is followed under protest—is characterized as a disgrace to the state—but still is followed. In some statutes have relieved from its iniquity in whole or in part. In some it is frankly repudiated by the courts because it lacks the sanction of reason and justice. This court has no legislative functions. As Lord Campbell said, it is here only to declare the law. Under the statute of 1868 it must determine whether a rule of the common law invoked in a judicial proceeding contravenes the constitution or statutes of the state, or has been modified by judicial decision, and whether it is adapted to the conditions and is suitable to the needs of the people of the state. This duty has been discharged in the present case.^[442]

LUMBY v. ALLDAY In the Exchequer, Hilary Term, 1831. Reported in 1 Crompton & Jervis, 301.

Action for words.

The judgment of the court was now delivered by

Bayley, B.^[443] This case came before the court upon a rule nisi to enter a nonsuit. The ground of motion was that the words (in slander) proved upon the trial were not actionable.

Two points were discussed upon the motion: one, whether the words were actionable or not; and the other, whether this was properly a ground of nonsuit.

The declaration stated that the plaintiff was clerk to an incorporated company, called the Birmingham and Staffordshire Gas Light 688Company, and had behaved himself as such with great propriety, and thereby acquired, and was daily acquiring, great gains; but that the defendant, to cause it to be believed that he was unfit to hold his situation, and an improper person to be employed by the company, and to cause him to be deprived of his situation, spoke the words complained of in the declaration, viz.: “You are a fellow, a disgrace to the town, unfit to hold your situation, for your conduct with whores. I will have you in the ‘Argus.’ You have bought up all the copies of the ‘Argus,’ knowing you have been exposed. You may drown yourself, for you are not fit to live, and are a disgrace to the situation you hold.”

The objection to maintaining an action upon these words is, that it is only on the ground of the plaintiff being clerk to the company that they can be actionable; that it is not alleged that they are spoken of him in reference to his character or conduct as clerk; that they do not, from their tenor, import that they were spoken with any such reference; that they do not impute to him the want of any qualification such as a clerk ought to have, or any misconduct which would make him unfit to discharge faithfully and correctly all the duties of such a clerk.

The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow v. Horne, 3 Wils. 177, “that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office; or when spoken of persons touching their respective professions, trades, and business, and do or may probably tend to their damage.” The same case occurs in Sir Wm. Bl. Rep. 753, and there the rule is expressed to be, “if the words be of probable ill consequence to a person in a trade or profession, or an office.”^[444]

The objection to the rule, as expressed in both reports, appears to me to be, that the words “probably” and “probable” are too indefinite and loose, and unless they are considered as equivalent to “having a natural tendency to,” and are confined within the limits, I have expressed in stating the defendant’s objections, of showing the want of some necessary qualification, or some misconduct in the office, it goes beyond what the authorities warrant.

Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff’s office, trade, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his 689conduct as clerk. I say as at present advised, for the reason which I am about to state.

The next question is, whether this is properly a ground of nonsuit; and I am of opinion that, under the circumstances of this case, it is not. The words proved are nearly all the words which the first count contains; and if the words proved are not actionable, none of the other words contained in that count are. When the general issue is pleaded to a count, it puts in issue to be tried by the jury the question, whether the facts stated in that count exist. The legal effect of those facts, whether they constitute a cause of action or not, is not properly in question. The proper mode to bring that legal effect into consideration is, before trial, to demur; after trial, to move in arrest of judgment. The duty of the judge, under whose direction the jury try questions of fact, is not to consider whether the facts charged give a ground of action, but to assist the jury in matters of law, which may arise upon the trial of those facts.

As the defendant, therefore, in this case puts in issue the allegations in the declaration, and those allegations were proved upon the trial, we are of opinion that the rule for a nonsuit ought to be discharged; and, notwithstanding the lapse of time, that there ought to be a rule nisi to arrest the judgment, if the defendant be advised to take such rule.

Rule discharged.^[445]

690

JONES v. LITTLER In the Exchequer, January 16, 1841. Reported in 7 Meeson & Welsby, 423.

Slander. The declaration stated that the plaintiff was a brewer, and that the defendant falsely and maliciously spoke and published of and concerning him in the way of his trade as a brewer the false, scandalous, malicious, and defamatory words following: “I’ll” (meaning that he, the defendant, would) “bet £5 to £1, that Mr. Jones” (meaning the plaintiff) “was in a sponging-house for debt within the last fortnight, and I can produce the man who locked him up; the man told me so himself.” Whereupon the said Henry Pye then asked the defendant, “Do you mean to say that Mr. Jones, brewer, of Rose Hill” (meaning and describing the plaintiff), “has been in a sponging-house within this last fortnight for debt?” and thereupon the defendant then replied to the said Henry Pye, and the said other persons then present, “Yes, I do.”

The jury having returned a verdict for the plaintiff, the court granted a rule to show cause why there should not be a new trial, on a suggestion that the learned judge ought to have left it as a question to the jury whether the words were spoken of the plaintiff in the way of his trade, and did not.

Parke, B. It is quite clear that this rule ought to be discharged, for the only ground on which it was granted has failed, inasmuch as the learned judge did leave the question to the jury, whether the words were spoken of the plaintiff in his trade; and, indeed, it is plain that the words were so used, from the fact that in the conversation in question the plaintiff was spoken of as a brewer. Independently of that, however, and even if they were spoken of him in his private character, I think the case of Stanton v. Smith, 2 Ld. Raym. 1480, is an authority to show that the words would have been actionable, because they must necessarily affect him in his trade. It is there said, “We were all of opinion that such words spoken of a tradesman must greatly lessen the credit of a tradesman, and be very prejudicial to him, and therefore that they were actionable.” That case is distinguishable from Ayre v. Craven, 2 A. & E. 2, and Doyley v. Roberts, 1 Bing. N. C. 135. In the latter of those cases the words were not spoken of the plaintiff in his business of an attorney; and in the former it did not appear in what manner the immorality was connected with the plaintiff’s profession of a physician; and it was possible that such imputations of incorrect conduct, out of the line of their respective professions, might not injure their professional characters. But this case is distinguishable, because here the imputation is that of insolvency, which must be injurious; for if a tradesman be incapable of paying all his debts, whether in or out of trade, his credit 691as a tradesman, which depends on his general solvency, must be injured. The case of Stanton v. Smith, as it appears to me, is good law, notwithstanding the observations of Coltman, J., in Doyley v. Roberts.

Alderson and Rolfe, BB., concurred.

Rule discharged.^[446]

SECOR v. HARRIS Supreme Court, New York, September, 1854. Reported in 18 Barbour, 425.

Motion by the plaintiff for a new trial, upon a bill of exceptions.

Mason, J. This is an action for slander. Upon the trial of the cause the plaintiff proved the following words, which were also alleged in the complaint: “Doctor Secor killed my children.” “He gave them teaspoonful doses of calomel, and they died.” “Dr. Secor gave them teaspoonful doses of calomel, and it killed them; they did not live long after they took it. They died right off,—the same day.” The plaintiff was proved to be a practising physician, and the evidence shows that he had practised in the defendant’s family, and had prescribed for the defendant’s children, and that the words were spoken of him in his character of a physician. The plaintiff claimed that the words were actionable, and that he was entitled to have this branch of the case, upon the words, submitted to the jury. The judge at the circuit held that the words were not actionable, and took them from the consideration of the jury. These words, spoken of the plaintiff as a physician, are actionable per se, whatever may be said upon the question, whether they impute a criminal offence. They do not impute a criminal offence, unless there is evidence, arising from the quantity of the calomel which the defendant alleged that the plaintiff gave these children, from which a jury would be justified in finding an intention to kill them. One of them was three years of age, and the other one year and a half. If the natural result, which should reasonably be expected from feeding children of such tender years full teaspoon doses of calomel, would be certain death, then it is not a forced construction of the words to say that the defendant intended to charge the plaintiff with an intention to kill these children, in giving them such doses. It is not necessary, however, to say that the judge should have submitted this case to the jury upon the question, whether the defendant did not intend to impute to the plaintiff, by these words, a criminal offence. I am quite inclined to think, however, that had the judge submitted the case to the jury upon the imputation of a criminal intent in these words, and had the jury found that such intent was imputed, we should not be justified in setting aside their verdict. It is not necessary, however, to place the case upon this ground; for it is certainly slanderous to say of a physician that 692he killed these children of such tender years, by giving them teaspoonful doses of calomel. The charge, to say the least, imports such a total ignorance of his profession as to destroy all confidence in the physician. It is a disgrace to a physician to have it believed that he is so ignorant of this most familiar and common medicine, as to give such quantities thereof to such young children. The law is well settled that words published of a physician, falsely imputing to him general ignorance or want of skill in his profession, are actionable, in themselves, on the ground of presumed damage. Starkie on Slander, 100, 110, 115, 10, 12; Martyn v. Burlings, Cro. Eliz. 589; Bacon’s Abr. title Slander, B; Watson v. Van Derlash, Hetl. 69; Tutler v. Alwin, 11 Mod. R. 221; Smith v. Taylor, 1 New R. 196; Sumner v. Utley, 7 Conn. R. 257. I am aware that it was held, in the case of Poe v. Mondford, Cro. El. 620, that it is not actionable to say of a physician, “He hath killed a patient with physic;” and that, upon the strength of the authority of that case, it was decided in this court in Foot v. Brown, 8 Johns. 64, that it was not actionable to say of an attorney or counsellor, when speaking of a particular suit. “He knows nothing about the suit; he will lead you on until he has undone you.” These cases are not sound. The case of Poe v. Mondford is repudiated in Bacon’s Abr. as authority, and cases are referred to as holding a contrary doctrine (vol. ix. pages 49, 50). The cases of Poe v. Mondford, and of Foot v. Brown, were reviewed by the Supreme Court of Connecticut, in the case of Sumner v. Utley, 7 Conn. R. 257, with most distinguished ability, and the doctrine of those cases repudiated. In the latter case it is distinctly held, that words are actionable in themselves, which charge a physician with ignorance or want of skill in his treatment of a particular patient, if the charge be such as imports gross ignorance or unskilfulness. To the same effect is the case of Johnson v. Robertson, 8 Porter’s R. 486, where it was held that the following words spoken of a physician in regard to his treatment of a particular case, “He killed the child by giving it too much calomel,” are actionable in themselves; and such is the case of Tutler v. Alwin, 11 Mod. R. 221, where it was held to be actionable to say of an apothecary, that “he killed a patient with physic.” See also 3 Wilson’s R. 186; Bacon’s Abr. title Slander, letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe v. Mondford and Foot v. Brown have been repudiated by the highest judicial tribunal in two of the American States, while the case of Poe v. Mondford seems to have been repudiated in England; and I agree with Clinch, J., that the reason upon which that case is decided is not apparent. I do not go the length to say that falsehood may not be spoken of a physician’s practice, in a particular case, without subjecting the party to this action. A physician may mistake the symptoms of a patient, or may misjudge as to the nature of his disease, and even as to the powers of medicine, and yet his error may be of that pardonable kind that will do him no essential prejudice, because it is rather a proof of human imperfection than of culpable ignorance or unskilfulness; and where charges are made against a physician that fall within this class of cases, they are not actionable, without proof of special damages.^[447] 7 Conn. R. 257. It is equally true, that a single act of a physician may evince gross ignorance, and such a total want of skill, as will not fail to injure his reputation, and deprive him of general confidence. When such a charge is made against a physician, the words are actionable per se. 7 Conn. R. 257. The rule may be laid 693down as a general one that, when the charge implies gross ignorance and unskilfulness in his profession, the words are actionable per se. This is upon the ground that the law presumes damage to result, from the very nature of the charge. The law in such a case lays aside its usual strictness; for when the presumption of damage is violent, and the difficulty of proving it is considerable, the law supplies the defect, and, by converting presumption into proof secures the character of the sufferer from the misery of delay, and enables him at once to face the calumny in open court. Starkie on Slander, 581. It was well said by the learned Chief Justice Hosmer, in Sumner v. Utley, 7 Conn. 257, that, “As a general principle, it can never be admitted that the practice of a physician or surgeon in a particular case may be calumniated with impunity, unless special damage is shown. By confining the slander to particulars, a man may thus be ruined in detail. A calumniator might follow the track of the plaintiff, and begin by falsely ascribing to a physician the killing of three persons by mismanagement, and then, the mistaking of an artery for a vein, and thus might proceed to misrepresent every single case of his practice, until his reputation should be blasted beyond remedy. Instead of murdering character by one stroke, the victim would be cut successively in pieces, and the only difference would consist in the manner of effecting the same result.” It is true, as was said by the learned Chief Justice Hosmer in that case, the redress proposed, on the proof of special damage, is inadequate to such a case. Much time may elapse before the fact of damage admits of any evidence; and then the proof will always fall short of the mischief. In the mean time the reputation of the calumniated person languishes and dies; and hence, as we have before said, the presumption of damage being violent, and the difficulty of proving it considerable, the law supplies the defect by converting presumption of damage into proof: Starkie on Slander, 581; in other words, the law presumes that damages result from the speaking of the words. In the case under consideration, the words proved impute to the plaintiff such gross ignorance of his profession, if nothing more, as would be calculated to destroy his character wherever the charge should be credited. It would be calculated to make all men speak out and say, as did the witness Richard Morris, “that it was outrageous, and the plaintiff ought not to be permitted to practise.” The law will therefore presume damages to result from the speaking of the words, and consequently hold the words actionable in themselves. The judge at the circuit erred in taking this branch of the case from the consideration of the jury, and a new trial must be granted; costs to abide the event of the action.