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]
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 adjudged 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 to
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]
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]
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 is 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. 110, 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 counts 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 declared 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 something,
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 been 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 to 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, 107 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 that 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. & 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, that 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 not 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 the 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.
The 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 things. 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._” It 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, or 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 argument
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 almost 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]
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.
LOPES, 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
without 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, and 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 fully 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 therefore 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 Company, 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 conduct 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]
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 as 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.