Part 2 — CHAPTER VIII INTERFERENCE WITH ADVANTAGEOUS RELATIONS

DAVIES v. GARDINER In the Common Pleas, Trinity Term, 1593. Reported in Popham, 36.^[529]

An action upon the case for a slander was brought by Anne Davies against John Gardiner; That whereas there was a communication of a marriage to be had between the plaintiff and one Anthony Elcock, the defendant, to the intent to hinder the said marriage, said and published that there was a grocer in London that did get her with child, and that she had the child by the said grocer, whereby she lost her marriage. To which the defendant pleaded not guilty, and was found guilty at the assizes at Aylesbury, to the damage of 200 marks. And now it was alleged, in arrest of judgment, that this matter appeareth to be merely spiritual, and therefore not determinable at common law, but to be prosecuted in the spiritual court. But per Curiam the action lies here, for a woman not married cannot by intendment have so great advancement as by her marriage, whereby she is sure of maintenance for her life, or during her marriage, and dower and other benefits which the temporal law gives by reason of her marriage; and therefore by this slander she is greatly prejudiced in that which is to be her temporal advancement, for which it is reason to give her remedy by way of action at common law. As if a woman keep a victualling house, to which divers of great credit repair, whereby she hath her livelihood, and one will say to her guests, that as they respect their credits, they take care how they use such a house, for there the woman is known to be a bawd, whereby the guests avoid her house, to the loss of her husband, shall not she in this case have an action at common law for such a slander? It is clear that she will. So, if one saith that a woman is a common strumpet, and that it is a slander to them to come to her house, whereby she loseth the advantage which she was wont to have by her guests, she shall have her action for this at common law.

So here upon these collateral circumstances, whereby it may appear that she hath more prejudice than can be by calling of one harlot, and the like.

And judgment was given for the plaintiff.^[530]

808

ALLSOP v. ALLSOP In the Exchequer, April 25, 1860. Reported, in 5 Hurlstone & Norman, 534.

Declaration.—That, before the committing of the grievances, the said Hannah was the wife of the plaintiff, William Allsop; and the defendant, on divers occasions, falsely and maliciously spoke and published of the plaintiff Hannah the words following (to the effect that he had had carnal connection with her whilst she was the wife of the plaintiff, William Allsop): “Whereby the plaintiff Hannah lost the society of her friends and neighbors, and they refused to, and did not, associate with her as they otherwise would have done, and she was much injured in her credit and reputation, and brought into public scandal and disgrace; and, by reason of the committing of the grievances, the said Hannah became and was ill and unwell for a long time and unable to attend to her necessary affairs and business, and the plaintiff, William Allsop, was put to and incurred much expense in and about the endeavoring to cure her of the illness which she labored under as aforesaid by reason of the committing of the said grievances; and the said William Allsop lost the society and association of his said wife for a long time in his domestic affairs, which he otherwise would have had.”

Demurrer and joinder.^[531]

Pollock, C. B. We are all of opinion that the defendant is entitled to judgment. There is no precedent for any such special damage as that laid in this declaration being made a ground of action, so as to render words actionable which otherwise would not be so. We ought to be careful not to introduce a new element of damage, recollecting to what a large class of actions it would apply, and what a dangerous use might be made of it. In actions for making false charges before magistrates, for giving false characters, and for torts of all kinds, illness might be said to have arisen from the wrong sustained by the plaintiff. The case of Ford v. Monroe, 20 Wendell, 210, is the only authority that has any tendency to throw light on the argument; but we ought not to act upon the authority of that case, opposed as it is to the universal practice of the law in this country. The courts here have always taken care that parties shall not be responsible for fanciful or remote damages, or, in fact, any that do not fairly and naturally result 809from the wrongful act itself. It is only lately that a clear and distinct view of the subject of damages was taken, in Hadley v. Baxendale, 9 Exch. 341, in which it was held that a person whose duty it is to deliver goods to another is not responsible for any damages resulting from the non-delivery, unless they are the damages which would result immediately and naturally, that is, according to the usual course of things, from the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made contract. Slander may be repeated, and the repetition may cause mischief. In one sense nothing is more natural than that such should be the case. So there are many other consequences which may follow in libel and slander in respect of which there is no remedy. This particular damage depends on the temperament of the party affected, and it may be laid down that illness arising from the excitement which the slanderous language may produce is not that sort of damage which forms a ground of action.

Judgment for the defendant.^[532]

DAVIES v. SOLOMON In the Queen’s Bench, November 29, 1871. Reported in Law Reports, 7 Queen’s Bench, 112.

Blackburn, J.^[533] The sole difficulty in deciding the case is caused by the opinion of Lord Wensleydale in Lynch v. Knight, 9 H. L. C. 577. He held that no action would lie for slander of a wife when the 810only special damage alleged was the loss to the plaintiff of the consortium of her husband. In the present case, however, it is unnecessary to decide this question, for the declaration, after alleging the loss of cohabitation by the wife, proceeds to aver that “she lost, and was deprived of the companionship, and ceased to receive the hospitality of divers friends.” Now, first, was that consequence such as might reasonably and naturally be expected to follow from the speaking of the slanderous words? Judging from the habits and manners of society, of all the consequences that might be expected to result from a statement that a woman had committed adultery, or had been guilty of unchastity, the most natural would be that those who had invited her and given her hospitality would thenceforth cease to do so. Then Moore v. Meagher, 1 Taunt. 39, decides that the loss of the hospitality of friends is sufficient special damage to sustain an action like the present, and the hospitality, as the word is there used, means simply that persons receive another into their houses, and give him meat and drink gratis. Perhaps such a definition may rather extend the signification of the word, but it is true in effect—for if they do not receive him, or if they make him pay for his entertainment, that is not hospitality. In Roberts v. Roberts, 5 B. & S. 384, 33 L. J. Q. B. 249, it is to be observed, that the loss suffered by the plaintiff in being excluded from a religious society was not temporal, and was therefore held not to be enough. But in the present case there is a matter of temporal damage—small though it be—laid in the declaration. It is also argued, that inasmuch as this action is brought by the wife, the husband being merely joined for conformity, the damage necessary to give a right to recover must be damage to her alone, and that the loss of hospitality which she has hitherto enjoyed is only pecuniary loss to her husband, and not to her. That certainly is a plausible argument, as the husband is of course bound to maintain his wife and to supply her with food, although her friends cease to do so. I am, however, unwilling to agree with such artificial reasoning, and I think that the real damage in this case is to the wife herself. Notwithstanding that it is the husband’s duty to support his wife, he is only bound to provide her with necessaries suitable to his station in life; and she might, by visiting friends in a higher position than himself, enjoy luxuries which he either could not or might not choose to afford her. But I should be sorry to say that we must enter into a nice inquiry as to whether such hospitality would save the purse of the husband or of the wife. I am therefore of opinion that the declaration is good; and the demurrer must be overruled.

Mellor and Hannen, JJ., concurred.

Judgment for the plaintiffs.

811

CORCORAN v. CORCORAN In the Exchequer, Ireland, November 17, 1857. Reported in 7 Irish Common Law Reports, 272.

Defamation.—The summons and plaint stated the speaking of words imputing prostitution to the plaintiff Anne, and calling her a vagabond, with an innuendo that this word imputed that she was a vagrant without a fixed place of abode. By means of the committing of which several grievances, the said plaintiff Anne hath been injured in her credit and reputation, and brought into disgrace with her acquaintances, in so much that her brother K. Dooley, who had promised to supply the said Anne with means to enable her to emigrate to Australia to join her husband, has now, in consequence of the imputations cast upon her character by the said defendant, retracted his promise until the truth or falsehood of the said charges shall have been first ascertained and established; whereby, &c.

Demurrer.

Pennefather, B.^[534] It certainly does strike me that this summons and plaint would not be good without the allegation of special damage.

Then, as to the special damage laid. I certainly agree that mere apprehension of damage would not be a sufficient statement; but here a promise has been laid. It is argued that no averment of the promisor’s intention to perform it has been made, but I think it must be taken that he intended to perform it, until the contrary be shown. In cases of actions for breach of promise, as, for instance, of marriage, there is never any allegation contained to that effect, nor could it be maintained that, without such an averment, the pleading would not be sufficient.

Then follows an allegation here that, by reason of the speaking of the words, the promisor retracted his promise, and broke off his treaty of giving the plaintiff funds to enable her to emigrate. Now, if the words stopped there, I think there is no question whatever but there was special damage sustained by the breach of a promise which must have been beneficial to the plaintiff. The demurrer must be overruled.

MILLER v. DAVID In the Common Pleas, January 20, 1874. Reported in Law Reports, 9 Common Pleas, 1187.

The first count stated that the defendant falsely and maliciously published of the plaintiff, a stone-mason, and employed as such in certain works carried on by one Mayberry, these words: “He was the ringleader of the nine-hours system,” whereby and by means of which 812premises the plaintiff was injured in his occupation of a stone-mason, and was discharged from his said employment at the said works, to wit, the Old Castle Iron and Tin Plate Works, and was without and could not obtain employment for a considerable time, and could get no employment but one of less value to the plaintiff, the place of employment being distant from his place of abode, and his necessary meals thereby becoming more costly, and such place of employment being exposed to wet weather.

The second count was similar, except that the words spoken were: “He has ruined the town by bringing about the nine hours system, and he has stopped several good jobs from being carried out, by being the ringleader of the system at Llanelly.”

Demurrer, on the ground that the words were not in themselves defamatory, and that special damage consequent thereon, therefore, gave no action. Joinder in demurrer.^[535]

Jan. 20. The judgment of the court (Lord Coleridge, C. J., and Keating, Brett, and Denman, JJ.) was delivered by

Lord Coleridge, C. J. In this case time was taken to consider our judgment, from the wish entertained by at least one member of the court to hold, if there were authority for the proposition, that a statement false and malicious made by one person in regard to another, whereby that other might probably, under some circumstances, and at the hands of some persons, suffer damage, would, if the damage resulted in fact, support an action for defamation. No proposition less wide in its terms than this would support the present declaration; for to call a man “the ringleader of the nine hours system,” and to say of him that he “had ruined a place by bringing about that system,” could not under many circumstances and at the hands of many people do the subject of such statement any damage at all. But we are unable to find any authority for a proposition so wide and general in its terms as would alone support this action.^[536]

The rule, as laid down by De Grey, C. J., in Onslow v. Horne, that words are actionable if they be of probable ill consequence to a person in a trade or profession, or an office, is expressly disapproved of by the Court of Exchequer in Lumby v. Allday. Bayley, B., there says: “Every authority which I have been able to find either shows the want of some general requisite, as honesty, capacity, fidelity, or the like, or connects the imputation with the plaintiff’s office, trade, or business.” In that case, the words proved were a very strong imputation on the morality of the plaintiff, who was a clerk to a gas company. But the court held them not actionable, because the imputation conveyed 813by them did not imply the want of any of those qualities which a clerk ought to possess, and because the imputation had no reference to his conduct as clerk. That case and the language of Bayley, B., in delivering the judgment of the court, have since been repeatedly approved of, and are really decisive of this case.

The words before us are not actionable in themselves. No expression in them was argued to be so except the word “ringleader;” and, as to that, it is sufficient perhaps to say that Dr. Johnson points out the mistake of supposing that the word is by any means necessarily a word of bad import; for, amongst other authorities, he cites Barrow as calling St. Peter the “ringleader” of the Apostles.^[537] Neither are the words connected with the trade or profession of the plaintiff, either by averment or by implication; so that, on neither ground can the declaration be supported. There is no averment here that the consequence which followed was intended by the defendant as the result of his words; and therefore it is not necessary to consider the question which was suggested on the argument, whether words not in themselves actionable or defamatory spoken under circumstances and to persons likely to create damage to the subject of the words, are, when the damage follows, ground of action. The judgment of Lord Wensleydale in Lynch v. Knight, 9 H. L. C., at p. 600, appears in favor of the affirmative of this question. But it is not necessary for us, for the reasons given, to express any opinion upon it; and upon this demurrer there must be judgment for the defendant.

Judgment for the defendant.

HATCHARD v. MÈGE In the Queen’s Bench Division, April 1, 1887. Reported in 18 Queen’s Bench Division Reports, 771.

Day, J.^[538] This is an application to set aside a nonsuit, which was directed by the Lord Chief Justice on the opening statement of counsel, and the question is whether the nonsuit was properly entered.

The statement of claim alleged that the defendants wrote and published “of and concerning the plaintiff and his said trade as a wine-merchant and importer the following false and malicious libel, that is to say:—

“‘Caution: Delmonico Champagne. Messrs. Delbeck & Co., finding that wine stated to be Delmonico champagne is being advertised 814for sale in Great Britain, hereby give notice that such wine cannot be the wine it is represented to be, as no champagne shipped under that name can be genuine unless it has their names on their labels. Messrs. Delbeck & Co. further give notice that if such wine be shipped from France they will take proceedings to stop such shipments, and such other proceedings in England as they may be advised,’ thereby meaning that the plaintiff had no right to use his said registered trade-mark or brand for champagne imported or sold by him, and that in using such trade-mark or brand he was acting fraudulently, and endeavoring to pass off an inferior champagne as being of the manufacture of Messrs. Delbeck & Co., and that the champagne imported and sold by the plaintiff was not genuine wine, and that no person other than the defendants had the right to use the word ‘Delmonico’ as a trade-mark or brand, or part of a trade-mark or brand, of champagne in the United Kingdom.”

The publication there set out is complained of as a libel on the plaintiff in relation to his trade. It is substantially a warning not to buy Delmonico champagne because it is not genuine. The statement of claim alleges that the publication is false and malicious; that would be a question for the jury; it is not for us to consider the facts of the case; we can only look at what was opened by the plaintiff’s counsel and what appears on the pleadings. The innuendo charges that the defendants intended to convey the meaning that the plaintiff had no right to use his trade-mark or brand, and that the wine he sold was not genuine. It may be that the publication bears that meaning, and that the words used import dishonesty. The plaintiff has died, and the question to be decided is how much, if any part, of the cause of action survives. The statute 4 Edw. 3, c. 7, and the course of practice, make it clear that a civil action for libel dies with the death of the person libelled. It does not come within the spirit, and certainly not within the letter of the statute. There is, however, a further question whether a right of action can survive because injury to the plaintiff’s trade-mark is alleged. Injury to trade is constantly alleged in actions for libel, and therefore that does not affect the question of survivorship. In the present case the second part of the statement of claim may be subdivided into two separate and distinct claims. The first is for ordinary defamation, either independently of the plaintiff’s trade, affecting his character by charging him with being a dishonest man, or defamation of him in his trade by charging him with being a dishonest wine-merchant. That claim would not survive, for it is nothing more than a claim in respect of a libel on an individual. But this publication may be construed to mean that the plaintiff had no right to use his trade-mark. This is not properly a libel, but is rather in the nature of slander of title, which is well defined in Odgers on Libel and Slander, c. v. p. 137, in the following passage: “But wholly apart from these cases there is a branch of the law (generally known by the inapproriate 815but convenient name—slander of title) which permits an action to be brought against any one who maliciously decries the plaintiff’s goods or some other thing belonging to him, and thereby produces special damage to the plaintiff. This is obviously no part of the law of defamation, for the plaintiff’s reputation remains uninjured; it is really an action on the case for maliciously acting in such a way as to inflict loss upon the plaintiff. All the preceding rules dispensing with proof of malice and special damage are therefore wholly inapplicable to cases of this kind. Here, as in all other actions on the case, there must be et damnum et injuria. The injuria consists in the unlawful words maliciously spoken, and the damnum is the consequent money loss to the plaintiff.”

It appears, therefore, that the first and last parts of the innuendo in the present case suggest slander of title. As appears from the passage I have read, an action for slander of title is not an action for libel, but is rather in the nature of an action on the case for maliciously injuring a person in respect of his estate by asserting that he has no title to it. The action differs from an action for libel in this, that malice is not implied from the fact of publication, but must be proved, and that the falsehood of the statement complained of, and the existence of special damage, must also be proved in order to entitle the plaintiff to recover. The question whether the publication is false and malicious is for the jury. Here, I think, special damage is alleged by the statement of claim, and if the plaintiff could have shown injury to the sale of the wine which he sold under his trade-mark, he would have been entitled to recover, and that is a cause of action which survives.

For these reasons I am of opinion that the nonsuit was right so far as it related to the claim in respect of a personal libel, but was wrong as to the claim in respect of so much of the publication as impugned the plaintiff’s right to sell under his trade-mark or brand.

There will, therefore, be an order for a new trial, but it will be limited to this latter part of the claim.

Order for a new trial.^[539]

816

MALACHY v. SOPER In the Common Pleas, November 25, 1836. Reported in 3 Bingham, New Cases, 371.

Tindal, C. J.^[540] In this case a verdict having been found for the plaintiff at the trial of the cause with £5 damages, a motion has been made to arrest the judgment on the ground that the declaration does not state any legal cause of action. And we are of opinion that this objection is well founded; and that the judgment must be arrested.

This is not an ordinary action for defamation of the person, by the publication of slander either oral or written; in which form of action no special damage need either be alleged or proved; the law presuming that the uttering of the slanderous words, or the publishing of the libel, have of themselves a natural and necessary tendency to injure the plaintiff. But this is an action to recover damages by reason of the publication of a paragraph in a newspaper, which contains no other charge than that the “petition in a bill filed in the Court of Chancery against the plaintiff, and certain other persons as share-owners in a certain mine, for an account and an injunction, had been granted by the Vice-Chancellor, and that persons duly authorized had arrived in the workings.” The publication therefore is one which slanders not the person or character of the plaintiff, but his title as one of the shareholders to the undisputed possession and enjoyment of his shares of the mine. And the objection taken is, that the plaintiff, in order to maintain this action, must show a special damage to have happened from the publication, and that this declaration shows none.

The first question therefore is, does the law require in such an action an allegation of special damage? And looking at the authorities we think they all point the same way. The law is clearly laid down in Sir W. Jones, 196 (Lowe v. Harewood): “of slander of title, the plaintiff 817shall not maintain action, unless it was re vera a damage; scil., that he was hindered in sale of his land; so there the particular damage ought to be alleged.” And in addition to the cases cited at the bar, viz., Sir John Tasborough v. Day, Cro. Jac. 484, and Manning v. Avery, Keb. 153, the case of Cane v. Goulding, Style’s Rep. 169, 176, furnishes a strong authority. That was an action on the case for slandering the plaintiff’s title, by speaking these words, viz., “his right and title thereunto is nought, and I have a better title than he.” The words were alleged to be spoken falso et malitiose, and that he was likely to sell, and was injured by the words; and that by reason of speaking the words, he could not recover his tithes. After verdict for the plaintiff, there was a motion in arrest of judgment; and Rolle, C. J., said, “there ought to be a scandal and a particular damage set forth, and there is not here;” and upon its being moved again and argued by the judges, Rolle, C. J., held that the action did not lie, although it was alleged that the words were spoken falso et malitiose for “the plaintiff ought to have a special cause; but that, the verdict might supply; but the plaintiff ought also to have showed a special damage which he hath not done, and this the verdict cannot supply: the declaration here is too general, and upon which no good issue can be joined; and he ought to have alleged, that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered, and that by speaking of them the sale was hindered;” and cited several cases to that effect.

We hold, therefore, on the authority of these cases, that an action for slander of title is not properly an action for words spoken, or for libel written and published, but an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff’s title. This action is ranged under that division of actions in the Digests, and other writers on the text law, and such we feel bound to hold it to remain at the present day.

The next question is, has there been such a special damage alleged in this case, as will satisfy the rule laid down by the authorities above referred to? The doctrine of the older cases is, that the plaintiff ought to aver that, by the speaking, he could not sell or lease (Cro. Eliz. 197, Cro. Car. 140); and that it will not be sufficient to say only, that he had an intent to sell, without alleging a communication for sale (R. 1 Roll. 244). Admitting, however, that these may be put as instances only, and that there may be many more cases in which a particular damage may be equally apparent without such allegation, they establish at least this, that in the action for slander of title, there must be an express allegation of some particular damage resulting to the plaintiff from such slander. Now the allegation upon this record is only this, “that the plaintiff is injured in his rights; and the shares so possessed by him, and in which he is interested, have been and are much depreciated and lessened in value; and divers persons have believed 818and do believe that he has little or no right to the shares, and that the mine cannot be lawfully worked or used for his benefit; and that he hath been hindered and prevented from selling or disposing of his said shares in the said mine, and from working and using the same in so ample and beneficial a manner as he otherwise would have done.” And we are of opinion that this is not such an allegation of special damage as the authorities above referred to require, where the action is not founded on the words spoken or written, but upon the special damage sustained.

It has been argued in support of the present action, that it is not so much an action for slander of title as an action for a libel on the plaintiff in the course of his business, and in the way of gaining his livelihood, and that such an action is strictly and properly an action for defamation, and so classed and held by all the authorities. But we think it sufficient to advert to the declaration, to be convinced that the publication complained of was really and strictly a slander of the plaintiff’s title to his shares, and nothing else. The bill in Chancery, out of which the publication arose, is filed by Tollervy, who disputed the plaintiff’s right to the whole of the shares, and claimed in himself a right to part of the same, and prayed that he might be declared to be entitled to some of them and the only mention made as to the working of the mines, was with reference to the appointment of a receiver to the profits thereof. And we think it would be doing violence to the natural meaning of the terms of the publication, if we were to hold it to be published of the plaintiff in the course of his business or occupation, or mode of acquiring his livelihood, and not as referring to the disputed title of the shares of the mine.

It has been urged, secondly, that however necessary it may be, according to the ancient authorities, to allege some particular damage in cases of unwritten slander of title, the case of written slander stands on different grounds; and that an action may be maintained without an allegation of damage actually sustained, if the plaintiff’s right be impeached by a written publication, which of itself, it is contended, affords presumption of injury to the plaintiff. No authority whatever has been cited in support of this distinction. And we are of opinion that the necessity for an allegation of actual damage in the case of slander of title, cannot depend upon the medium through which that slander is conveyed, that is, whether it be through words, or writing, or print; but that it rests on the nature of the action itself, namely, that it is an action for special damage actually sustained, and not an action for slander. The circumstance of the slander of title being conveyed in a letter or other publication appears to us to make no other difference than that it is more widely and permanently disseminated, and the damages in consequence more likely to be serious than where the slander of title is by words only; but that it makes no difference whatever in the legal ground of action.

819For these reasons we are of opinion, that the action is not maintainable, and that the judgment must be arrested; and, consequently, it becomes unnecessary to inquire whether the innuendo laid in the declaration is more large than it ought to have been.

We therefore make the rule for arresting the judgment,

Absolute.^[541]

WHITE v. MELLIN In the House of Lords, February 14, 1895. Reported in [1895] Appeal Cases, 154.

The respondent was the proprietor of Mellin’s food for infants, which he sold in bottles enclosed in wrappers bearing the words “Mellin’s Infants’ Food.” The respondent was in the habit of supplying the appellant with these bottles, which the appellant sold again to the public after affixing on the respondent’s wrappers a label as follows:—

“Notice.

“The public are recommended to try Dr. Vance’s prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered. Sold in barrels, each containing 1 lb. nett weight, at 7½d. each, or in 7 lb. packets 3s. 9d. each. Local agent, Timothy White, chemist, Portsmouth.”

The appellant was the proprietor of Vance’s food. Discovering this practice, the respondent brought an action against the appellant, claiming an injunction to restrain him and damages.

At the trial before Romer, J., the plaintiff proved the above facts, and called two analysts and a physician, the result of whose evidence is stated in Lord Herschell’s judgment. Briefly, they testified that in their opinion Mellin’s food was suitable for infants, especially up to the age of six months, and persons who could not digest starchy matters, 820and that Vance’s food was unsuitable for such beings, nay pernicious and dangerous for very young infants. At the close of the plaintiff’s case Romer, J., being of opinion that the label was merely the puff of a rival trader and that no cause of action was disclosed, dismissed the action with costs. The Court of Appeal (Lindley, Lopes, and Kay, L.JJ.) being of opinion that the cause ought to have been heard out, discharged that judgment and ordered a new trial, [1894] 3 Ch. 276.^[542]

Lord Herschell, L. C. (after stating the facts):—

My Lords, in the Court of Appeal Lindley, L. J., stated the law thus: “If upon hearing the whole of the evidence to be adduced before him the result should be that the statement contained in the label complained of is a false statement about the plaintiff’s goods to the disparagement of them, and if that statement has caused injury to or is calculated to injure the plaintiff, this action will lie.” Lopes, L. J., said: “All I desire to say is that, in my opinion, it is actionable to publish maliciously without lawful occasion a false statement disparaging the goods of another person and causing such other person damage, or likely to cause such other person damage.”

None of the learned judges in the Court of Appeal dealt with the evidence which had been adduced on behalf of the plaintiff; but I think it must be taken that they had arrived at the conclusion that that evidence did bring the case within those statements of the law. Of course, if the plaintiff, on his evidence, had made out no case, he could not complain that the learned judge decided against him and did not hear the witnesses for the defendant; the action was in that case properly dismissed. I take it, therefore, that although the learned judges did not analyse the evidence or make any reference to it, they must have concluded that it established a case coming within the law as they laid it down. My Lords, as I understand, in the view of those learned judges, or in the view of Lindley, L. J., to take his statement of the law in the first place, it was necessary in order to the maintenance of the action that three things should be proved: that the defendant had disparaged the plaintiff’s goods, that such disparagement was false, and that damage had resulted or was likely to result. Now, my Lords, the only statement made by the defendant by means of the advertisement is this: that Vance’s food was the most healthful and nutritious for infants and invalids that had been offered to the public. The statement was perfectly general, and would apply in its terms not only to the respondent’s infants’ food but to all others that were offered to the public. I will take it as sufficiently pointed at the plaintiff’s food by reason of its being affixed to a bottle of the plaintiff’s food when sold, and that it does disparage the plaintiff’s goods by asserting that they are not as healthful and as nutritious 821as those recommended by the defendant. The question then arises, Has it been proved on the plaintiff’s own evidence that that was a false disparagement of the plaintiff’s goods?

I will state what I understand to be the result of the plaintiff’s evidence. Mellin’s food for infants and invalids is a preparation of such a nature that the food is said to be predigested, and therefore not to make that call upon the digestion which food ordinarily does; that as regards children under six months of age Mellin’s food is the only one which could be suitably used in the place of the ordinary means of nourishment, the mother’s milk, and that any farinaceous food would at that age be not only not nutritious but prejudicial. And so far, accepting the plaintiff’s evidence for this purpose, there being no evidence to the contrary, the plaintiff, I think, establishes that his food was specially meritorious for that class of cases, and that it would not be correct to say that as regards these children of very tender age Vance’s food or any other farinaceous food would be not only more healthful and nutritious, but as healthful and nutritious. But then it appears that when a child has passed the age up to which nutrition at the breast may ordinarily be said to continue, the use of some farinaceous food is not only not prejudicial but desirable, and that if the child were to be always brought up upon a food which would be suitable during the very earliest weeks or months, its digestion would be likely to suffer rather than benefit, and there would be not more, but less nourishment. After twelve months, as I understand the evidence, the farinaceous food would be distinctly better for the purposes of nutrition and health than this predigested food. That, my Lords, I take to be a fair statement of the result of the evidence. Can it be said, under those circumstances, that it is a false disparagement of the plaintiff’s goods to say that this other preparation—Vance’s—is more nutritious and healthful for infants and invalids? I put aside the question of invalids: upon that there was no evidence at all. The plaintiff did not say that his was more healthful, or that the defendant’s was not more healthful. It is therefore unnecessary to consider the case of invalids, and it is enough to confine one’s attention to the case of infants.

The word “infants” is not in ordinary parlance confined to children of very tender age. If one looks at its derivation etymologically it would apply to children so long as they are not able to articulate distinctly—not able to speak—and nobody would hesitate to refer to children, I should say, at least under two years of age as infants, just as much as they would to children under six months of age. Therefore, if you look at the class of infants as a whole, it is by no means shown that the statement that Vance’s food is more nutritious and healthful than the plaintiff’s food is false. If the reference had been specially to that very early period of life during which Mellin’s food would be beneficial and the other prejudicial, no doubt a statement of 822that description might well be said to be a false statement; but looking fairly at the language used and the meaning to be attributed to it, I am not satisfied that it has been shown that by means of this advertisement the defendant falsely disparaged the plaintiff’s goods. But, my Lords, assuming that he did so, the Court of Appeal regarded it as requisite for the maintenance of the action that something further should be proved, and that is that the disparaging statement has caused injury to or is calculated to injure the plaintiff. Upon that there is a complete absence of evidence. The plaintiff was called, but he did not state that he had sustained any injury, nor did he even say that it was calculated to injure him, and I own it seems to me impossible, in the absence of any such statement or evidence, to say that it is a case in which such must be the necessary consequence; on the contrary, speaking for myself, I should doubt very much whether it was likely to be the consequence. After all, the advertisement is of a very common description, puffing, it may be, extremely and in an exaggerated fashion, these particular goods, Vance’s food. That advertisement was outside the wrapper; inside was found an advertisement of Mellin’s food, in which Mellin’s food was stated to be recommended by the faculty as best for infants and invalids. Why is it to be supposed that any one buying this bottle at the chemist’s would be led to believe that Mellin’s food which he had bought was not a good article or not as good an article as another, merely because a person who obviously was seeking to push a rival article said that his article was better? My Lords, why should people give such a special weight to this anonymous puff of Vance’s food, obviously the work of some one who wanted to sell it, as that it should lead him to determine to buy it instead of Mellin’s food, which was said to be recommended by the faculty as the best for infants and invalids? I confess I do not wonder that the plaintiff did not insist that he had sustained injury by what the defendant had done. There is an entire absence of any evidence that the statement complained of either had injured or was calculated to injure the plaintiff. If so, then the case is not brought even within the definition of the law which Lindley, L. J., gives.

Lopes, L. J., adds the word “maliciously,” that “it is actionable to publish maliciously without lawful occasion a false statement disparaging the goods of another person.” By that it may be intended to indicate that the object of the publication must be to injure another person, and that the advertisement is not published bona fide merely to sell the advertiser’s own goods, or at all events, that he published it with a knowledge of its falsity. One or other of those elements, it seems to me, must be intended by the addition of the word “maliciously.” Both those are certainly absent here. There is nothing to show that the object of the defendant was other than to puff his own goods and so sell them, nor is there anything to show that he did not believe that his food was better than any other.

823The only case which the learned counsel for the respondent was able to rely upon as at all approaching the present is the case of the Western Counties Manure Company v. Lawes Chemical Manure Company, L. R. 9 Ex. 218, in which case a declaration was held good which alleged the disparagement of the plaintiff’s goods by stating that they were inferior to those sold by the defendants.^[543] In that case special damage was alleged in the declaration, and I think that that allegation was regarded by both the learned judges who were parties to the decision as material and essential. In the earlier case of Evans v. Harlow, 5 Q. B. 624, a statement was complained of which distinctly disparaged the plaintiff’s goods. It cautioned the public against them, it pointed out to the public that they were not likely to realize the purpose for which they were designed, and the allegation was that “the defendant published a libel of and concerning the plaintiff and of and concerning him in his said trade and of and concerning his design as follows.” In that case there was no allegation of special damage; there was a demurrer to the declaration, and the declaration was held bad. Now, the only distinction that I can see between that case and the case of the Western Counties Manure Company v. Lawes Chemical Manure Company is that in the latter case special damage was alleged, whereas in the former it was not. Bramwell, B., does not call specific attention to the differentia between the case before him and the case of Evans v. Harlow, but he says that there is nothing in any of the cases inconsistent with the judgment which he is pronouncing. Pollock, B., who was the other judge, pointed out that in Evans v. Harlow there was no allegation of special damage. Therefore, my Lords, the utmost that the Western Counties Manure Company v. Lawes Chemical Manure Company, L. R. 9 Ex. 218, can be claimed as an authority for is this, that an action will lie for falsely disparaging another’s goods where special damage results. Evans v. Harlow, 5 Q. B. 624, is a distinct authority that it will not lie where special damage does not result. In the present case it cannot be pretended that any special damage was either alleged or proved.

Mr. Moulton sought to extricate himself from that difficulty in this way: he said that if this were an action for damages that might be a well-founded objection to it, but that it is not an action for damages but a claim for an injunction, and that although it may be that to support an action for damages it would be necessary to allege and prove special damage, that is not necessary where an injunction is claimed—that it is enough if a false statement is made and is likely to be repeated.

824Now my Lords, no authority was cited to show that a Court of Equity under any of the branches of its jurisdiction had ever granted or would grant an injunction in such a case. Certainly there is no rule of equity under which it may be said generally that a Court of Equity would restrain every publication of a false statement. In the case of Canham v. Jones, 2 V. & B. 218, the bill stated that a certain Mr. Swainson had been the sole proprietor of a secret for preparing the medicine called “Velno’s Vegetable Syrup,” and that the plaintiff had obtained title to it under his will and had sold the medicine. Then the complaint was that the defendant, who had been a servant of Swainson, was employed in the preparation of the syrup but was not acquainted with the complete preparation, certain essential ingredients being introduced only by Swainson himself and only in the presence of the plaintiff. Then it alleged “that the defendant being discharged from his service had made and advertised for sale a spurious preparation under the name of Velno’s Vegetable Syrup, stated by him to be the same medicine in composition and quality as that made by Swainson and the plaintiff, the defendant’s advertisement certifying that the medicine prepared by him at his residence under the name of Velno’s Vegetable Syrup is precisely the same with that made and sold by the late Mr. Swainson.” It was alleged that that was untrue, and that it was a spurious preparation pretending to be the same when it really was not. To that bill the defendant put in a general demurrer for want of equity. That demurrer was sustained by the Vice-Chancellor, Sir Thomas Plumer, although for the purposes of that demurrer it was taken that the defendant selling this article was falsely stating that it was the same as the plaintiff’s.

My Lords, the learned counsel relied upon recent cases in which an injunction has been granted to restrain the publication of a libel, and he suggested that there had been a growth of equity jurisprudence which had brought within its ambit a class of cases which were previously not regarded as within it. But when the case in which the Court of Appeal laid down that an injunction might be granted to restrain the publication of a libel is looked at, it will be seen that the decision was not founded upon any principle or rule of equity jurisprudence, but upon the fact that a Court of Common Law could have granted such an injunction in an action of libel, and that since the Judicature Act the power which a Court of Common Law possessed in that respect is now possessed also by the Court of Chancery. That was distinctly the ground upon which the judgment was founded, that “the 79th and 82d sections of the Common Law Procedure Act 1854 undoubtedly conferred on the Courts of Common Law the power, if a fit case should arise, to grant injunctions at any stage of a cause in all personal actions of contract or tort, with no limitation as to defamation;” and then, inasmuch as those powers are now possessed by the 825Chancery Division, it was held that they likewise could in such cases grant an injunction. That was the decision in Bonnard v. Perryman, [1891] 2 Ch. 269.

My Lords, obviously to call for the exercise of that power it would be necessary to show that there was an actionable wrong well laid, and if the statement only showed a part of that which was necessary to make up a cause of action—that is to say, if special damage was necessary to the maintenance of the action, and that special damage was not shown—a tort in the eye of the law would not be disclosed, the case would not be within those provisions, and no injunction would be granted. I think, therefore, for these reasons, that the plaintiff would not be entitled to an injunction, any more than he would be entitled to maintain an action unless he established all that was necessary to make out that a tort had been committed; and for the reasons which I have given, taking the Western Counties Manure Company v. Lawes Chemical Manure Company, L. R. 9 Ex. 218, to be good law, he has not brought himself within it.

But, my Lords, I cannot help saying that I entertain very grave doubts whether any action could be maintained for an alleged disparagement of another’s goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor’s goods are better either generally or in this or that particular respect than his competitor’s are. Of course, I put aside the question (it is not necessary to consider it) whether where a person intending to injure another, and not in the exercise of his own trade and vaunting his own goods, has maliciously and falsely disparaged the goods of another, an action will lie; I am dealing with the class of cases which is now before us, where the only disparagement consists in vaunting the superiority of the defendant’s own goods. In Evans v. Harlow Lord Denman expressed himself thus: “The gist of the complaint is the defendant’s telling the world that the lubricators sold by the plaintiff were not good for their purpose, but wasted the tallow. A tradesman offering goods for sale exposes himself to observations of this kind, and it is not by averring them to be ‘false, scandalous, malicious, and defamatory’ that the plaintiff can found a charge of libel upon them. To decide so would open a very wide door to litigation, and might expose every man who said his goods were better than another’s to the risk of an action.” My Lords, those observations seem to me to be replete with good sense. It is to be observed that Evans v. Harlow, 5 Q. B. 624, does not appear to have been decided on the ground merely that there was no allegation of special damage. The only judge who alludes to the absence of such an allegation is Patteson, J. No reference to it is to be found either in the judgment of Lord Denman or in the judgment of Wightman, J., the other two judges who took part in that decision; and I think it is impossible 826not to see that, as Lord Denman says, a very wide door indeed would be opened to litigation, and that the courts might be constantly employed in trying the relative merits of rival productions, if an action of this kind were allowed.

Mr. Moulton sought to distinguish the present case by saying that all that Lord Denman referred to was one tradesman saying that his goods were better than his rival’s. That, he said, is a matter of opinion, but whether they are more healthful and more nutritious is a question of fact. My Lords, I do not think it is possible to draw such a distinction. The allegation of a tradesman that his goods are better than his neighbor’s very often involves only the consideration whether they possess one or two qualities superior to the other. Of course “better” means better as regards the purpose for which they are intended, and the question of better or worse in many cases depends simply upon one or two or three issues of fact. If an action will not lie because a man says that his goods are better than his neighbor’s, it seems to me impossible to say that it will lie because he says that they are better in this or that or the other respect. Just consider what a door would be opened if this were permitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The Court would then be bound to inquire, in an action brought, whether this ointment or this pill better cured the disease which it was alleged to cure—whether a particular article of food was in this respect or that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better. As I said, advertisements and announcements of that description have been common enough; but the case of Evans v. Harlow, 5. Q. B. 624, was decided in the year 1844, somewhat over half a century ago, and the fact that no such action—unless it be Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218—has ever been maintained in the Courts of Justice is very strong indeed to show that it is not maintainable. It is, indeed, unnecessary to decide the point in order to dispose of the present appeal.

For the reasons which I have given I have come to the conclusion that the judgment of the court below cannot be sustained, even assuming the law to be as stated by the learned judges; but inasmuch as the case is one of great importance, and some additional color would be lent to the idea that an action of this description was maintainable by the observations in the court below, I have thought it only right to express my grave doubts whether any such action could be maintained even if the facts brought the case within the law there laid down.

Upon the whole, therefore, I think that the judgment of Romer, J., was right and ought to be restored and that this appeal should be 827allowed, with the usual result as to costs; and I so move your Lordships.

Order of the Court of Appeal reversed; Judgment of Romer, J., restored, with costs here and in the Court of Appeal; Cause remitted to the Chancery Division.^[544]

STONE v. CARLAN Superior Court, New York, 1850. Reported in 13 Law Reporter, 360.

The important facts of this case appear in the opinion of the court.

Campbell, J. A motion is made for an injunction restraining the defendants from using the names “Irving Hotel,” “Irving House,” “Irving,” &c., upon their coaches and upon certain badges worn by defendants upon their arms and hats. The complainants have an agreement with the proprietors of the Irving House, in this city, under which they are permitted to use the name of such proprietors, and the name of their hotel, upon their coaches and the badges of their servants; the complainants paying therefor a stipulated sum, and having also entered into bonds for the faithful discharge of these duties. All the porters are engaged in carrying passengers and their baggage to and from the hotels, boats, railroad depots, &c.

It was well remarked by the Master of the Rolls, in Croft v. Day, 7 Bevan, 84, that “No man has a right to dress himself in colors, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud. I stated upon a former occasion, that, in my opinion, the right which any person may have to the protection of this court does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud; and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others.” I entirely concur in the foregoing views. The question is, whether the defendants have committed a fraud. I cannot doubt that their intention was to mislead, and to induce travellers to believe that they were servants of the proprietors of the Irving House. This is a large and popular hotel, 828well known in the country, and many a traveller may wish to resort to it on his arrival in this city, who, at the same time, may not know whether the carriages of the proprietors are painted red or white, or whether the exact designation is that of the Irving House or Irving Hotel. Such traveller may wish to intrust himself and his baggage to the servants of the hotel, feeling that, in doing so, he would be protected against loss or damage by the responsibility of the proprietors. Now, in this case, it can hardly be doubted but that the object of the defendant was to induce the belief on the part of the travellers that they were the servants of this hotel. To induce such belief, it was not necessary that the resemblance of all carriages and badges should be complete. From the very circumstances of the case, it would not be necessary to have a perfect resemblance, in order to commit even a gross fraud. It is not necessary to go, in this case, the length of the ordinary cases of trade-marks, though this case might come within the rules of those cases. (See Coates v. Holluck, 2 Sanford Ch. R., and Notes, and cases there cited.) The false pretences of the defendants would, I think, necessarily tend to mislead. The defendants have a perfect right to engage in a spirited competition in conveyance of passengers and their baggage. They may employ better carriages than the plaintiffs. They may carry for less fare. They may be more active, energetic, and attentive. The employment is open to them, but “they must not dress themselves in colors, and adopt and bear symbols,” which belong to others. I had some doubt, at the time of the argument, whether the complaint should not have been made by the proprietors of the Irving House; but, on further reflection, think that the suit is well brought. The plaintiffs are the real parties in interest. It is possible that, owing to the general liability of the proprietors, as innkeepers, for the loss of the property of guests, the proprietors might also be entitled to an injunction restraining the defendants from holding themselves out as the servants of the hotel.

An injunction must issue, as prayed for, against all the defendants.^[545]

829

HUGHES v. McDONOUGH Supreme Court of Judicature, New Jersey, November, 1881. Reported in 43 New Jersey Law Reports, 459.

On writ of error.

The substance of the declaration was, that the plaintiff was a blacksmith and horseshoer by trade, of good character, &c.; that he had obtained the patronage of one Peter Van Riper, and that on a certain occasion he shod a certain mare of the said Van Riper in a good and workmanlike manner; that the defendant, maliciously intending to injure the plaintiff in his said trade, &c., “did wilfully and maliciously mutilate, impair and destroy the work done and performed by the said plaintiff upon the mare of the said Van Riper, without the knowledge of the said Van Riper, by loosing a shoe which was recently put on by the said plaintiff, so that if the mare was driven, the shoe would come off easily, and thus make it appear that the said plaintiff was an unskilful and careless horseshoer and blacksmith, and that the said mare was not shod in a good and workmanlike manner, and thus deprive the said plaintiff of the patronage and custom of the said Van Riper.”

The second count charges the defendant with driving a nail in the foot of the horse of Van Riper, after it had been shod by the plaintiff, with the same design as specified in the first count.

The special damage laid was the loss of Van Riper as a customer.

Argued at June term, 1881, before Beasley, Chief Justice, and Justices Scudder, Knapp and Reed.

830The opinion of the court was delivered by

Beasley, C. J. The single exception taken to this record is, that the wrongful act alleged to have been done by the defendant does not appear to have been so closely connected with the damages resulting to the plaintiff as to constitute an actionable tort. The contention was, that the wrong was done to Van Riper; that it was his horse whose shoe was loosened, and whose foot was pricked, and that the immediate injury and damage were to him, and that, consequently, the damages of the plaintiff were too remote to be made the basis of a legal claim.

But this contention involves a misapplication of the legal principle, and cannot be sustained. The illegal act of the defendant had a close causal connection with the hurt done to the plaintiff, and such hurt was the natural and almost direct product of such cause. Such harmful result was sure to follow, in the usual course of things, from the specified malfeasance. The defendant is conclusively chargeable with the knowledge of this injurious effect of his conduct, for such effect was almost certain to follow from such conduct, without the occurrence of any extraordinary event, or the help of any extraneous cause. The act had a twofold injurious aspect: it was calculated to injure both Van Riper and the plaintiff; and as each was directly damnified, I can perceive no reason why each could not repair his losses by an action.

The facts here involved do not, with respect to their legal significance, resemble the juncture that gave rise to the doctrine established in the case of Vicars v. Wilcocks, 8 East, 1. In that instance the action was for a slander that required the existence of special damage as one of its necessary constituents, and it was decided that such constituent was not shown by proof of the fact that as a result of the defamation the plaintiff had been discharged from his service by his employer before the end of the term for which he had contracted. The ground of this decision was that this discharge of the plaintiff from his employment was illegal, and was the act of a third party, for which the defendant was not responsible, and that, as the wrong of the slander became detrimental only by reason of an independent wrongful act of another, the injury was to be imputed to the last wrong, and not to that which was farther distant one remove. In his elucidation of the law in this case, Lord Ellenborough says, alluding to the discharge of the plaintiff from his employment, that it “was a mere wrongful act of the master, for which the defendant was no more answerable, than if, in consequence of the words, other persons had afterwards assembled and seized the plaintiff and thrown him into a horse-pond by way of punishment for his supposed transgression.” The class of cases to which this authority belongs, rests upon the principle that a man is responsible only for the natural consequences of his own misdeeds, and that he is not answerable for detriments that 831ensue from the misdeeds of others. But this doctrine, it is to be remembered, does not exclude responsibility when the damage results to the party injured through the intervention of the legal and innocent acts of third parties; for, in such instances, damage is regarded as occasioned by the wrongful cause, and not at all by those which are not wrongful. Where the effect was reasonably to have been foreseen, and where, in the usual course of events, it was likely to follow from the cause, the person putting such cause in motion will be responsible, even though there may have been many concurring events or agencies between such cause and its consequences. This principle is stated, and is illustrated by a reference to a multitude of decisions in Cooley on Torts, 70, et seq....^[546]

The principles thus propounded must have a controlling effect in the decision of the question now before this court, as they decisively show that the damage of which the plaintiff complained was not, in a legal sense, remote from the wrongful act. What, in point of substance, was done by the defendant, was this: he defamed, by the medium of a fraudulent device, the plaintiff in his trade, and by means of which defamation, the latter sustained special detriment. If this defamation had been accomplished by word spoken or written, or by signs or pictures, it is plain the wrong could have been remedied, in the usual form, by an action on the case for the slander; and, plainly, no reason exists why the law should not afford a similar redress when the same injury has been inflicted by disreputable craft. It is admitted upon the record that the plaintiff has sustained a loss by the fraudulent misconduct of the defendant; that such loss was not only likely, in the natural order of events, to proceed from such misconduct, but that it was the design of the defendant to produce such result by his act. Under such circumstances it would be strange indeed if the party thus wronged could not obtain indemnification by an appeal to the judicial tribunals.

HUGHES v. SAMUELS BROTHERS Supreme Court, Iowa, October 17, 1916. Reported in 179 Iowa Reports, 1077.

Gaynor, J. Plaintiff and defendant both reside in the city of Storm Lake, and each is and was engaged in the retail furniture business, and, as an incident thereto, carried on a business of undertaking. Defendants are a copartnership.

The plaintiff claims: That on the 6th day of October, 1914, the 832defendants falsely and maliciously composed and published of and concerning the plaintiff the following:

“Bear in mind our Undertaking Department. Satisfaction guaranteed.

(Signed) H. L. Hughes.”

That the defendants caused the same to be printed upon a card and mailed to the address of one Albert Cattermole, a citizen and resident of Storm Lake. That at the time the card was mailed the wife of the said Cattermole was lying critically ill in a hospital in Storm Lake. That of this fact the defendants had full knowledge at the time they composed and published said statement. That they composed and published it for the malicious purpose of injuring the plaintiff in his reputation and business as aforesaid. That the same as so published tended to provoke plaintiff to wrath, and expose him to public hatred, contempt, and ridicule, and to deprive him of public confidence and esteem and social intercourse. That the same was further published for the malicious and wicked purpose of causing the said Albert Cattermole and members of his family, and others to whom the said card or letter might become known, to believe that plaintiff sent the card, and for the further purpose of inducing the said Cattermole to refrain from patronizing the business of the plaintiff. That the publication was further made for the purpose of inciting indignation and hatred in the minds of said Cattermole and the members of his family towards the plaintiff and his business as an undertaker, and that it did this. That similar cards were sent to other persons under similar circumstances, and for the purposes aforesaid.

To this petition defendants filed a demurrer, the substance of which is, that the plaintiff’s petition stated no cause of action; that the words published were not libellous per se, and no special damages are alleged to have been suffered by the plaintiff on account of its publication. This demurrer was sustained by the court. Plaintiff elected to stand on his pleading and not to plead further, and his petition was thereupon dismissed, and from the action of the court in the premises plaintiff has appealed to this court....

It appears that Cattermole’s wife was sick unto death at the time this card was composed by defendants and sent to him. The defendants knew this fact at the time they composed and mailed the card. We take judicial notice of the fact that the city in which the parties resided was not so populous that the active business men of the city were not known to each other and to the general public. The card was so framed and mailed by the defendants as to lead the receiver to believe that the plaintiff had composed and mailed it, and this was their purpose in mailing it. What possible reason could they have in preparing and publishing this card? Was it to help a rival? Was it to exploit the business of a rival? Was it intended as a letter of credit to the public by and through which he would be better installed 833in its confidence and esteem? Is this the usual and ordinary course of procedure on the part of rival business firms? With the largest charity, we cannot think this was the purpose of the publication. What, then, was the purpose in the minds of these defendants when they composed and sent these cards to the sick and dying in the community? Was it not rather, as the petition says, to deprive him of public confidence and esteem? Was it not rather to expose him to public contempt and ridicule? Was it not rather to divert business through this means from the plaintiff, and to injure him by such diversion?

Cattermole’s wife was sick unto death at the time he received this card; confined in the hospital. What impression would this card make upon his mind? Would it not bring before him the spectacle of a vulture waiting to prey upon the dead? A man without sympathy for the living because he found more revenue in the dead? What is it these defendants meant by this thing that they have done? What end had they in view? We think, surely, that which the petition charges, to wit, to injure the plaintiff in his reputation and business, to expose him to public contempt or ridicule, to deprive him of public confidence and esteem. What, then, would be the natural and ordinary effect of such a card upon the mind of one to whom it was sent, under the conditions attending Cattermole? Surely it would bring the sender of such a card, under the conditions then existing, into contempt and hatred, and deprive him of public confidence and esteem. Can the thought be entertained for a moment that after the receipt of a card like this under those circumstances, that the receiver would patronize the sender in the event the stricken wife had died? Was it to secure this for the plaintiff that the card was sent?

Published words which directly tend to the prejudice or injury of a person in his office, profession, or business are actionable. Williams v. Davenport, 42 Minn. 393, 44 N. W. 311, 118 Am. St. Rep. 519.

Any publication calculated to expose one to public hatred, contempt, or ridicule is libellous per se. Dressel v. Shipman, 57 Minn. 23, 58 N. W. 684.

The general rule is, that when language is published concerning a person or his affairs, which, from its nature, necessarily must, or presumably will as its natural and proximate consequence, occasion him pecuniary loss, its publication is libellous per se. See Townsend on Slander and Libel, (4th ed.) §§ 146 and 147; Fry v. McCord, 95 Tenn. 680, 33 S. W. 568.

Peculiar damages are required to be alleged only when the publication, with its attending facts and circumstances, is such that damages do not naturally arise from the publication. If the publication, with its attending facts and circumstances, is such that the court can legally presume that injury followed as a natural and inevitable consequence 834of the act complained of, then there is no occasion, in order to maintain an action, that the plaintiff allege or prove peculiar damages. If the nature and character of the publication, with its attending facts and circumstances, are such as to injuriously affect or detract from the reputation and standing of another, and as a natural and proximate result, tend to bring him into public contempt, hatred, or ridicule, then it is libellous per se. If such injury can be said to be a natural proximate result or consequence of its publication, then the plaintiff is presumed to have been damaged, and there is no need of any allegation of peculiar damages. The extent of the damages is for the jury.

It is the venom of poisoned speech that constitutes the libel. In tracing the wrong that flows from the publication, we come first to the mind of the reader, and inquire what effect it would naturally have upon the ordinary thinking mind. We first consider the facts published, and the circumstances under which they were published, and the persons to whom a knowledge of the publication was brought. An inquiry arises, would such a publication, under such circumstances, naturally tend to poison the mind against the person concerning whom the matter was published? If the matter published can be said, in its natural effect upon the mind, to produce hurt to the good name, fame, and reputation of the person about whom the publication is made, then we say the matter is defamatory, and the person necessarily has suffered not only wrong, but damages, as a proximate result of the wrong—damage to his good name, fame, and reputation in the community. If the words in and of themselves, when published, do not tend to this effect naturally and of their own force and vitality, the mind naturally inquires into the circumstances under which they were published, the manner of their publication, and the persons to whom a knowledge of the publication was brought. This inquiry is pursued to ascertain the effect which the publication, under the circumstances, would naturally have upon the mind of the person to whom a knowledge of the publication was brought. If the words and the circumstances attending their publication would not naturally affect the mind prejudicially against the person concerning whom the publication is made, it must be alleged and shown, not only that they were used in a defamatory sense, but that they were so understood by the hearers. When words, innocent in themselves, are charged to have been intended and used in a defamatory sense, it must be alleged and proven that they were intended in a defamatory sense and were so understood by the persons to whom they were addressed. If they do not themselves convey a defamatory meaning, or an imputation that is defamatory, something must be alleged which shows, or tends to show, that the user of the words intended them in a defamatory sense, and that the persons to whom a knowledge of the publication came were affected in their mental attitude towards the person, to the injury 835of his good name, fame, and reputation. The publication may be so worded that this could not be gathered from the publication itself. It may be innocent and even commendatory in itself, yet the facts and circumstances attending the publication, the relationship of the parties—the defamer and the defamed—to the public may be such, considered in the light of the subject-matter concerning which the publication is made, that it is apparent that there was not only an intent to defame, but that a defamatory imputation was so exposed, that the ordinary mind easily grasped the purpose of the publication and its injurious consequences to the good name, fame, and reputation of the defamed.

Men receive impressions of and concerning others from what they hear others say about them. Libel is a tort. It consists in a wrong done to the good name, fame, and reputation of another. It is in the nature of an assault upon the good name, fame, and reputation of another. The law protects a man in the possession of his good name, and denies to others the right, wrongfully and wickedly, to make an assault upon it. It is often the only asset a man has. Rob him of this, and you rob him of all that he has in life that makes life worth living.

A physical assault is clearly understood and easily defined. One may be punished criminally or mulcted in damages civilly for physical assault. Libel is an assault upon that invisible and intangible thing known as reputation. Though invisible and intangible, it exists among men and is prized, and the law protects it. As has been said by this court, libel rests upon the thought that a public wrong has been committed; an act has been done in violation of the statute, to the hurt of the complaining citizen. A citizen’s right to remain secure in his good name and reputation among his fellows, and to enjoy their confidence and esteem, has been violated. A libel is that which tends to take from him one of his most valuable rights—his right to the confidence, esteem, and respect of his fellow men. One who, by right living and right conduct, has built up for himself an enviable name among his fellows, and has drawn to him their confidence and esteem, is entitled to retain and enjoy the same, and one who wrongfully and maliciously, and without just cause, makes an assault thereon, and impairs or injures the same, does a grievous wrong for which he is answerable in damages.

It is true that the wrong must be found in the publication, not merely in the wording of the thing published. The injury must flow from the publication. The damage must be the natural and proximate result of the publication; a result that usually, naturally, and ordinarily follows as a result of the wrong done.

Though the article itself conveys no wrong impression concerning the complainant, and in and of itself could do no harm, it may become most injurious, most hurtful; it may become a direct assault upon 836the good name, fame, and reputation, because of the manner and the circumstances under which it was published. The publication must be libellous, not necessarily that the article in and of itself is libellous.

“A libel is the malicious defamation of a person made public by any writing,” &c. It is the malicious defamation against which the inhibition of the statute is raised; malicious defamation made public by writing. A writing made public which is intended to and does, because of its publication, tend to provoke to wrath, to expose to public hatred, contempt, or ridicule, or which deprives one of the benefits of public confidence and social intercourse, is libellous per se.

Every written publication, maliciously made, defamatory of another, which tends to any of the consequences set out in the statute, is a violation of the inhibitions of the statute. It is therefore a wrong done to a citizen in violation of the statute. It is therefore actionable per se. The fact that it is a violation of the inhibition of the statute makes it actionable per se.

In contemplation of law, reputation is a delicate plant, withered by the breath of scandal. Any publication which imputes to another conduct which right-thinking men condemn, whether the conduct involve a crime, moral turpitude, or any conduct in life, purpose, or manner of living which the common sense of right-thinking men condemns, is presumed in law to have injuriously affected the reputation of the person so assailed, and, by such injury, to have caused him some damage.

It follows, therefore, that libel is an assault upon character resulting in some injury to reputation. The injury must be traceable to the assault, and the damage must be the proximate result of the injury. Every one recognizes the blighting effect of scandalous utterances directed against the character, conduct, or reputation of men. Every one recognizes that such assaults, publicly made, tend injuriously to affect the reputation and standing of the one so assailed among his fellows. It is from the recognition of this that the law implies damages, without allegation or proof of special damages.

Defamation consists in maliciously poisoning the minds of others against the party assaulted by printing, writing, &c., thereby bringing on them some of the consequences provided against in the statute. The statute is intended to, and does, prohibit the malicious poisoning of the minds of others against a citizen, under the protection of the law, by the use of public printing, &c., and this inhibition attaches whether done directly by the wording of the thing complained of, or indirectly by insinuation, imputation, or suggestion. The statute is intended to protect one in a right, and to deny to others the liberty to invade that right.

With no explanation from the defendants, we may rightly assume that they prepared and mailed this card for the purpose hereinbefore indicated, and that the consequences charged in the petition were the 837consequences that naturally flowed from the thing done. We think the pleading was sufficient to present the question to the jury. As supporting what we have said, see Call v. Larabee, 60 Iowa, 212, 14 N. W. 237; Hollenbeck v. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Halley v. Gregg, 74 Iowa, 564, 38 N. W. 416. In the latter case it is said, in substance, that if the act charged constitutes a libel, as defined by the statute, it is actionable per se. See Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9, in which it is said:

“Words which may be innocent of themselves may be rendered libellous by the place and circumstances of their publication, for such place and circumstances may impress on them a meaning and suggestion which, standing alone, they do not have. Thus, though the words here do not of themselves impute wrong, they might be published in such a place or under such circumstances as to make them capable of naturally conveying the impression that plaintiff had been guilty of dishonest practices, either in contracting the debt or in withholding payment of it.... What meaning they would naturally convey was for the jury to determine in view of the circumstances of their publication.” State of Missouri v. Armstrong, 106 Mo. 395, 16 S. W. 604, reported in 13 L. R. A. 419, 27 Am. St. Rep. 361, together with citations and annotations; Nichols v. Daily, 30 Utah, 74, 83 Pac. 573, 3 L. R. A. N. S. 339, 116 Am. St. Rep. 296, 8 Ann. Cas. 841.

We find no case directly in point on the questions here considered. We think, however, the plaintiff presented a fair question for the jury, and the court erred in sustaining the demurrer, and the cause is therefore reversed.

Reversed.

Evans, C. J., and Ladd, J., concur. Salinger, J., special concurrence.

Salinger, J. There is language in the opinion which indicates there may be libel which is not libel per se. I do not wish to be bound by it. I think it is settled by our cases that whatever is libellous is libellous per se; that the action for libel rests on the fact that a “crime has been committed,” and that, therefore, the law presumes damage if a libel is established.^[547]

838

WESTMINISTER LAUNDRY CO. v. HESSE ENVELOPE CO. St. Louis Court of Appeals, Missouri, May 6, 1913. Reported in 174 Missouri Appeal Reports, 238.

Nortoni, J. This is a suit for damages, in which plaintiff recovered a verdict for one dollar. On this verdict, judgment was given, and defendant prosecutes an appeal therefrom.

All of the relevant facts appear from the face of the petition, and the question of liability is to be determined thereon. It appears that the plaintiff, the defendant and the D’Arcy Advertising Company are each corporations engaged in their respective callings in the city of St. Louis. Plaintiff owns and is engaged in the business of operating a steam laundry. Defendant is engaged in the business of manufacturing envelopes. The D’Arcy Advertising Company is engaged in the advertising business—that is to say, it places advertisement in St. Louis for those who choose to patronize it. The plaintiff laundry company engaged the D’Arcy Advertising Company to do certain advertising for it by running what is known as a “blind” advertisement. Such “blind” advertisement is described in the petition as follows:

“The fundamental idea of same (the ‘blind’ advertisement) being the use of some striking device well adapted to attract public attention, but unaccompanied, upon its first appearance, by the name of the advertiser using it, other matter being added later and the name of the advertiser, also, being given when the curiosity of the public has been sufficiently piqued and the attention of the public has been excited by the ‘blind’ nature of the advertisement.”

The striking device referred to in the quotation from the petition and that contemplated in the instant case is the word “Stopurkicken.” The petition avers that plaintiff entered into a contract with the D’Arcy Advertising Company whereby it was to have the exclusive use of the word “Stopurkicken;” that the D’Arcy Advertising Company, in pursuance of plaintiff’s plan, had the word “Stopurkicken” published upon signboards and by way of printed cards. After the word “Stopurkicken” had been so used and before plaintiff had time to determine upon a proper supplement to such advertisement to disclose its own name and identity, the defendant, Hesse Envelope Company, well knowing the word “Stopurkicken” was being used in the manner mentioned and desiring to take advantage of the word “Stopurkicken,” as above described, printed and distributed throughout the city of St. Louis a large number of cards bearing the word “Stopurkicken” and followed by the name of the Hesse Envelope Company. Because of this use of the word by defendant, Hesse Envelope Company, plaintiff avers it is damaged and prays a recovery therefor.

839It is said the word “Stopurkicken” is an attractive misspelling and contraction of the phrase “Stop your kicking,” designed to excite public curiosity. It is obvious the petition states no cause of action against defendant unless the word “Stopurkicken” is either a trade-mark in which plaintiff enjoys a proprietary right, or is possessed of a secondary meaning, which, by user, has become a part of the good will of plaintiff’s business, otherwise the word is publici juris and available to every person desiring to employ it identically as is the original phrase of which it is a contraction. From the affirmative averments of the petition, it is entirely clear plaintiff enjoyed no trade-mark in the word under consideration. Indeed, the cause does not proceed upon that theory. Plaintiff is engaged in the laundry business, which, of course, is that of washing and ironing for others. There is no suggestion in the petition that the word “Stopurkicken” was in any manner annexed to plaintiff’s wares or the output of its laundry. Infringement of a trade-mark consists in the unauthorized use or colorable imitation of it upon substituted goods of the same class as those for which the mark has been appropriated. (38 Cyc. 741.) The petition reveals that plaintiff has not yet employed the word in any manner so as to identify it with its business, for it says, though a contract had been entered into between plaintiff and the D’Arcy Advertising Company for the use of the word and it had been employed in blank space on signboards and on cards, plaintiff had not yet revealed its identity in connection therewith. Defendant is engaged in the manufacture and sale of envelopes and used the word on an advertising card followed immediately by the name Hesse Envelope Company. These facts appearing as they do in the petition, sufficiently disclose that no proprietary right as in trade-mark existed in the plaintiff in respect of the word “Stopurkicken.” Not only must an exclusive proprietary right appear in the trade-mark but the actual use of the trade-mark is essential as a means of identifying the origin, ownership or manufacture of the goods of its proprietor, and, furthermore, such trade-mark must be annexed to and accompany the goods into the market to the end of their identification. (See Grocers Journal Co. v. Midland Publishing Co., 127 Mo. App. 356, 366, 105 S. W. 310; 38 Cyc. 691, 693.) Unless the word or insignia relied upon is in some manner attached or affixed to the article in trade or stamped or inscribed thereon, it is not a trade-mark and the maker of such article is without trade-mark rights concerning it. (See Oakes v. St. Louis Candy Co., 146 Mo. 391, 48 S. W. 467; St. Louis Piano Mfg. Co. v. Merkel, 1 Mo. App. 305.) It is entirely clear that defendant in using the word “Stopurkicken” in connection with advertising its envelopes, was not infringing upon plaintiff’s laundry business, for the wares or commodities of the two companies are entirely dissimilar. But aside from this, it appears affirmatively that the plaintiff had never used the word in connection with the 840output of its laundry. It had, therefore, obtained no proprietary right thereto by continued use through affixing it to the workmanship of its laundry turned out into the market.

For the same reasons, in part at least, no secondary right to the use of the phrase appears in plaintiff by user such as is essential to render it a portion of the good will of its laundry business as if reputation obtained thereon. It is certain that the case may not be sustained as one for unfair competition. Unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another. (See Cyc. 756.) Nothing less than conduct tending to pass off one man’s goods or business as that of another will constitute unfair competition, for such is the very essence of the wrong on which the law affords redress to the injured party. (See Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 674, 21 S. Ct. 270, 45 L. Ed. 365; 38 Cyc. 762, 763; 38 Cyc. 758; see, also, Grocers Journal Co. v. Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310.) The relief, in cases of unfair competition, proceeds upon the theory that the words or phrase employed as by long use in connection with the goods or business of a particular trade come to be understood by the public as designating the goods or business of that particular trader. Because of such user, the word or phrase becomes identified with the business of him who employs it and constitutes a part of its good will. Such meaning of the words or phrase, it is said, is the genesis of the law of unfair competition as distinguished from technical trade-mark, and, therefore, relief against unfair competition is afforded upon the ground that one who has built up a good will and reputation for his goods or business under a particular designation is entitled to the benefits therefrom. And secondary to this, the theory is that the deception of the public injures the proprietor of the business by diverting his customers and filching his trade. (Grocers Journal Co. v. Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310; 38 Cyc. 760, 761, 763, 769.)

It is to be observed that, though the right to complain as for unfair competition does not in every instance require that the complainant shall have a proprietary right in the phrase, it does require that he shall have used it in his business as a means of identifying his goods as his product and for a sufficient length of time to establish a repute therefor in the market as pointing his product. (Grocers Journal Co. v. Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310; Reach Co. v. Simmons Hardware Co., 155 Mo. App. 412, 135 S. W. 503; 38 Cyc. 769, 763.) Unless the word or phrase involved has become a parcel of the good will of his business by continued use in connection with the product of the proprietor, it is entirely clear that the use of the same word by another does not reveal an unfair competition. (Shelley v. Sperry, 121 Mo. App. 429, 99 S. W. 488.)

841The petition shows on its face that plaintiff had never used the word “Stopurkicken” in connection with the output of its laundry, but on the contrary only employed it on billboards and cards otherwise blank, as an attraction to arouse the curiosity of the public with a view of revealing the name of the advertiser (plaintiff) thereafter. It is clear enough that, though defendant interposed and used the same word on cards bearing its name, as it did, no unfair competition appears when considered in the sense of the law on the subject and until plaintiff had obtained a right thereto by actual user in connection with the product of its laundry, the phrase “Stopurkicken” must be regarded as publici juris and available to all who desired to employ it identically as was the original phrase “Stop your kicking.” It is certain the D’Arcy Advertising Company had no superior right to either the phrase or the contracted word and that it could confer none upon plaintiff by its contract to employ it as a means of arousing the curiosity of the public for plaintiff’s benefit. (Reach v. Simmons Hardware Co., 155 Mo. App. 412, 135 S. W. 503.) Though persons who have acquired a right in respect of words and phrases by user as above indicated, may assign or contract such right to another in conjunction with the good will of the commodity, the identity of which they point, it is obvious that an advertising agent may not appropriate any word or phrase he chooses by merely seizing it out of our vocabulary, and confer an exclusive right thereto on another by a contract to employ it in aid of his business. We are advised of no principle of our jurisprudence on which the judgment in this case may be sustained, and the counsel for plaintiff have omitted to file a brief suggesting one. The judgment should be reversed. It is so ordered. Reynolds, P. J., and Allen, J., concur.