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]
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 from 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 only
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._
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
premises 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 by
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 for 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 but
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]
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
shall 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 and
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.
For 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 7½_d._ each, or in 7 lb. packets 3_s._ 9_d._ 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,
and 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 as
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 that
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.
The 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.
Now 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 Chancery 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 not 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 allowed,
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, well 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]
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.
The 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 ensue 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
defendants 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 in 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 of
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 of 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 the 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 consequences
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]
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.
It 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 output 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.)
The 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.
THE MIDLAND INSURANCE CO. _v._ SMITH
IN THE QUEEN’S BENCH DIVISION, MARCH 23, 1881.
_Reported in Law Reports, 6 Queen’s Bench Division, 561._
WATKIN WILLIAMS, J.[548] This action is one of an extraordinary, and so
far as I am aware of an unprecedented, character. The questions of law
involved in the case, which was argued before me yesterday, arise upon
demurrer to the statement of claim, and I now proceed to give judgment.
The facts, which for the purposes of the argument are assumed to be
true, are as follows: The plaintiffs, an insurance company, granted to
the defendant, Charles Smith, a policy of fire insurance, dated the 26th
of June, 1880, by which they agreed with him that if certain property in
a certain house should be destroyed or damaged by fire they would pay or
make good all such loss or damage during the currency of the policy. The
defendant Mary, the wife of the defendant Charles Smith, having been
left by him in charge of the house and property insured did, with the
malicious intention of destroying the insured property and of injuring
the insurance company and of creating a claim upon the policy, wilfully
set fire to and destroy the house and the insured property. Charles
Smith, the assured, then made a claim upon the policy against the
company. The company thereupon brought this present action against Smith
and his wife, to recover damages for the loss which the company alleged
they had sustained or might sustain through the wrongful and felonious
act of the defendant Mary, if the defendant Charles made good his claim
upon his policy.
I was informed in the course of the argument, although these facts do
not appear formally before me, that the defendant Charles had, before
this present action, brought an action against the company upon the
policy to recover the amount of his loss, and that in that action the
company disputed their liability on the ground that the loss, having
been caused by the arson of the wife, was not covered by the policy, and
that they had also set up a counterclaim for damages against Smith and
his wife, who was brought in as a party to the action upon the same
ground; that that action went down to trial, and that the learned judge,
before whom the cause came on for trial, adjourned the proceedings in
order to enable the company to test the validity in law of their
contention in a separate and distinct manner before proceeding to try
the question of arson. The present action was then commenced. The
questions, however, for determination in this action must depend
exclusively upon the facts set forth in the statement of claim, and the
issues of law raised by the demurrer.
The company in support of their case started with the general principle
that “every husband is liable for the wrongful acts of his wife,” and
that as the defendant Mary had wrongfully injured and destroyed the
insured property, and had caused the damage upon which a claim upon the
policy had been based, they, as the insurers of the property, had a
right to sue her and her husband for the damage and injury so done by
her, and not the less so because the husband happened to be himself the
assured whom they had agreed to indemnify. In substance, the contention
of the company came to this, that they ought not to be called upon to
pay the assured the amount claimed, without being entitled concurrently
to claim damages from him for the loss caused by the act of his wife,
for which he is answerable.
The defendants, by their demurrer to this claim, raised two main issues
of law. In the first place they said that the company were not in a
position to maintain any action for the alleged damage done to the
goods, because they were not the owners of the goods, nor had they
sufficient interest therein to entitle them to maintain an action; that
their only right as insurers would be to avail themselves of such rights
and remedies as were vested in their assured, after they had admitted
his claim and been subrogated to his rights in relation to the subject
of insurance; and that, even if they had been subrogated to the rights
of the assured, they could only sue in his name and could not maintain
an action in their own name, and therefore that no such action could be
maintained in the present case, because the assured had no right of
action against his own wife.
In the next place the defendants contended that this action being based
upon an act, which on the face of the statement of claim amounted to a
felony, could not be maintained, because it was not shown that the
rights of the public law had been vindicated by a prosecution of the
felon.[549]
Upon the first ground of demurrer the defendants are, in my judgment,
clearly entitled to judgment both upon principle and upon authority. It
appears to me that the insurance company have no right of action under
the circumstances for the damage done to the goods by the defendant
Mary. At the time when the damage was done to the goods the company had
no property or interest in the goods sufficient to sustain any action
for damage done to them; no right or interest in the goods could accrue
to the insurance company, until they had acknowledged the claim under
the policy, and by so doing entitled themselves to the benefit of any
claims and causes of action vested in the assured; but it seems that
even up to this moment the insurance company dispute the claim and deny
the right of the assured to demand an indemnity under the policy. But,
further, it seems to me equally clear that, if they had done everything
to entitle themselves to the benefit of such a claim, it could only be
enforced in the name of the assured and for the purpose of enforcing his
rights, and inasmuch as he could have no such claim or right against his
wife, it follows that in no possible view of the case is the plaintiffs’
claim sustainable. The case of Simpson _v._ Burrell, 3 App. Cas. 279, is
in point upon this question. In that case Burrell was the owner of two
ships, one of which negligently ran down and sank the other with a
valuable cargo. Burrell’s underwriters upon the sunken ship paid him for
a total loss, and were so subrogated to all his rights. A claim was made
by the owners of the cargo in the sunken ship against Burrell, as the
owner of the ship in fault, for the value of their goods, and Burrell,
as the owner of the ship in fault, paid into court the whole value of
that ship at £8 per ton, as the limit of his liability under the
Merchant Shipping Acts, to be ratably divided among all who had
sustained loss and damage by the ship being negligently run down and
sunk; thereupon Burrell’s underwriters upon the sunken ship who had paid
for a total loss claimed to come in and share with the rest the money
paid in by the ship in fault; but the House of Lords, reversing the
decision of the Lords of Session in Scotland, decided that they had no
such right, and the reasoning in that case is directly applicable to the
present. The Lord Chancellor Cairns said, “The view of the Lord
President therefore appears to be that, after payment by the
underwriters as on a total loss, there is effected by some independent
operation of law a transfer of whatever, if anything, can be recovered
in specie of the thing insured—and by reason of the transfer of the
thing insured an independent right in the underwriters to maintain in
their own name, and without reference to the person assured, an action
for the damage to the thing insured which was the cause of the loss. I
am not aware of any authority for the view of the case thus taken. I
know of no foundation for the right of the underwriters, except the
well-known principle of law that where one person has agreed to
indemnify another he will, on making good the indemnity, be entitled to
succeed to all the ways and means by which the person indemnified might
have protected himself against or reimbursed himself for the loss.”
Lord Penzance said: “The learned counsel for the underwriters contended
that they, by virtue of the policy which they entered into in respect of
this ship, had an interest of their own in her welfare and protection,
inasmuch as any injury or loss sustained by her would indirectly fall
upon them as a consequence of their contract, and that this interest was
such as would support an action by them in their own names and behalf
against a wrong-doer. This proposition virtually affirms a principle
which I think your Lordships will do well to consider with some care, as
it will be found to have a much wider application and signification than
any which may be involved in the incidents of a contract of insurance.
The principle involved seems to me to be this,—that where damage is done
by a wrong-doer to a chattel, not only the owner of the chattel, but all
those who by contract with the owner have bound themselves to
obligations which are rendered more onerous, or have secured to
themselves advantages which are rendered less beneficial by the damage
done to the chattel, have a right of action against the wrong-doer,
although they have no immediate or reversionary property in the chattel,
and no possessory right by reason of any contract attaching to the
chattel itself, such as by lien or hypothecation. This, I say, is the
principle involved in the respondent’s contention. If it be a sound one,
it would seem to follow that if by the negligence of a wrong-doer goods
are destroyed, which the owner of them had bound himself by contract to
supply to a third person, this person, as well as the owner, has a right
of action for any loss inflicted upon him by their destruction. But if
this be true as to injuries done to chattels, it would seem to be
equally so as to injuries to the person. An individual injured by a
negligently driven carriage has an action against the owner of it. Would
a doctor, it may be asked, who had contracted to attend him and provide
medicines for a fixed sum by the year, also have a right of action in
respect of the additional cost of the attendance and medicine cast upon
him by the accident? And yet it cannot be denied that the doctor had an
interest in his patients safety. In like manner an actor or singer,
bound for a term to a manager of a theatre, is disabled by the wrongful
act of a third person to the serious loss of the manager; can the
manager recover damages for that loss from the wrong-doer? Such
instances might be indefinitely multiplied, giving rise to rights of
action which in modern communities, where every complexity of mutual
relations is daily created by contract, might be both numerous and
novel.” See, also, the cases of Randal _v._ Cockran, 1 Ves. Sen. 97;
North of England Insurance Association _v._ Armstrong, Law Rep. 5 Q. B.
244; Stewart _v._ Greenock Marine Insurance Co., 2 H. L. C. 159;
Davidson _v._ Case, 8 Price, 542; Mason _v._ Sainsbury, 3 Douglas, 61;
Yates _v._ Whyte, 4 Bing. N. C. 272.
This action cannot therefore in my judgment be maintained, nor is there
any substantial injustice in such a result, because, as it seems to me,
the insurance company are in this dilemma; the loss and damage caused by
the wrongful act of the wife either is or is not a loss which the
company have agreed to indemnify the husband against; now, if it is such
a loss, an attempt by the company to enforce against the husband a
return indemnity or reimbursement is at variance with the very substance
of their undertaking to indemnify him; if, on the other hand, the loss,
by reason of its having arisen from the act of the wife, is not within
the risks and losses covered by the policy, then this action is as
wholly misconceived, unnecessary, and unfounded, as if the loss had been
caused by any other risk not covered by the policy. The truth is that
the real and substantial contention on the part of the insurance company
is, that the loss in question having been caused by the wilful act of
the wife of the assured, although acting without the privity of her
husband, is not a loss covered or insured against by the policy. That
question might be raised in the action brought by the assured against
the company upon the policy, but it does not arise, and indeed could not
be raised, so as to receive a binding and judicial determination, in
such an action as the present. As however the question has been fully
and ably argued before me, and as the parties have expressed a desire to
elicit an opinion upon the point, I have no hesitation in saying that it
appears to me to be upon principle perfectly clear and free from doubt
that such a loss would be covered by an ordinary policy against loss
caused by fire; under such a policy the company would be liable for
every loss caused by fire, unless the fire itself were caused and
procured by the wilful act of the assured himself or some one acting
with his privity and consent. In order to escape from responsibility for
such a loss as the present the company ought to introduce into their
policy an express exception.
_Judgment for the defendants._
KLOUS _v._ HENNESSEY
SUPREME COURT, RHODE ISLAND, JUNE 14, 1881.
_Reported in 13 Rhode Island Reports, 332._
DURFEE, C. J.[550] This is an action on the case for conspiracy. The
declaration charges in effect that the defendants and one Patrick
Kenney, said Kenney being then a debtor of the plaintiffs, conspired
together to prevent the plaintiffs and the other creditors of said
Kenney from getting payment of their claims out of his property, and
that, in pursuance of the conspiracy, Kenney made fictitious mortgages
of his real and personal property to the defendants, under cover of
which the defendants removed the personal property out of the possession
of Kenney, and secreted it so that the plaintiffs were prevented from
attaching it, and thus lost their claims. At the trial, after the
plaintiffs had introduced their testimony in proof of the declaration,
the court, on motion of the defendants, it having appeared that the
plaintiffs were merely creditors at large of Kenney, without any
interest in his property or lien upon it by attachment, levy, or
otherwise, ruled that the action, in respect of the charges aforesaid,
was not maintainable. The plaintiffs excepted to the ruling for error,
and now petition for a new trial.
There is some conflict of authority on the question thus raised, but the
more numerous and, we think, the better-reasoned and stronger cases are
against the action. The principal ground of decision in these cases is
that the damage, which is the gist of the action, is too remote,
uncertain, and contingent, inasmuch as the creditor has, not an assured
right, but simply a _chance_ of securing his claim by attachment or
levy, which he may or may not succeed in improving.[551] It is
impossible to find any measure of damages for the loss of such a mere
chance or possibility. Another ground, added in some of the cases, is
that no action would lie in favor of such a creditor against the debtor
for putting his property beyond the reach of legal process, if the
debtor were to do it by himself alone, and that what would not be
actionable if done by himself alone cannot be actionable any the more
when done by him with the assistance of others. The first of these
grounds, which is the fundamental one and has been chiefly relied on,
has been so exhaustively analyzed and discussed in the cases that it is
impossible for us to add anything to the reasons adduced in support of
it; and therefore, without reproducing them, we deem it sufficient
simply to cite the cases themselves, all of which are accessible and can
be readily consulted. Lamb _v._ Stone, 11 Pick. 527; Wellington _v._
Small, 3 Cush. 145; Moody _v._ Burton, 27 Me. 427, 431; Adler _v._
Fenton, 24 How. U. S. 407; Austin _v._ Barrows, 41 Conn. 287, 296;
Kimball _v._ Harman & Burch, 34 Md. 407, 410; Bradley _v._ Fuller, 118
Mass. 239. See also Bump on Fraudulent Conveyances, 505, 506; Cooley on
Torts, 124, 586.
_Petition dismissed._[552]
HUTCHINS _v._ HUTCHINS
SUPREME COURT, NEW YORK, JANUARY, 1845.
_Reported in 7 Hill, 104._
_By the Court_, NELSON, C. J.[553] The case is substantially this:—The
father of the plaintiff devised to him, in due form of law, a farm
consisting of one hundred and fifty-one acres of land. The defendant,
being aware of the fact, and intending to deprive the plaintiff of the
benefit and advantage of the devise, and of his expected estate and
interest in the farm, falsely and maliciously represented to the father,
that, after his decease, the plaintiff intended to set up a large demand
against the estate, which would absorb the greater part of it, and thus
deprive the other children of their just share; at the same time
defaming and calumniating the character of the plaintiff in several
particulars. By these fraudulent means the defendant prevailed upon the
father to revoke and cancel the will, and to make and execute a new one,
by which the plaintiff was excluded from all participation in his
father’s estate.
This is the substance of the case, in its strongest aspect, as presented
by the pleadings; and the question arises whether any actual damage, in
contemplation of law, is shown to have been sustained by the plaintiff?
Fraud without damage, or damage without fraud, gives no cause of action;
but where both concur, an action lies. Damage, in the sense of the law,
may arise out of injuries to the person or to the property of the party;
as any wrongful invasion of either is a violation of his legal rights,
which it is the object of the law to protect. Thus, for injuries to his
health, liberty and reputation, or to his rights of property, personal
or real, the law has furnished the appropriate remedies. The former are
violations of the absolute rights of the person, from which damage
results as a legal consequence. As to the latter, the party aggrieved
must not only establish that the alleged tort or trespass has been
committed, but must aver and prove his right or interest in the property
or thing affected, before he can be deemed to have sustained damages for
which an action will lie.
Now, testing the plaintiff’s declaration by these principles, has he
made out a case from which it can be said that damage has resulted to
him? I think not. In respect to the farm devised to him by the first
will, he fails to show that he had any such interest in it as the law
will recognize. The only foundation of his claim rests upon the mere
unexecuted intention of his father to make a gift of the property; and
this cannot be said to have conferred a right of any kind. To hold
otherwise, and sanction the doctrine contended for by the plaintiff,
would be next to saying that every voluntary courtesy was matter of
legal obligation; that private thoughts and intentions, concerning
benevolent or charitable distributions of property, might be seized upon
as the foundation of a right which the law would deal with and protect.
I have not overlooked the cases referred to on the argument, of actions
of slander, where special damage must be shown in order to make the
words actionable; and where the deprivation of any present substantial
advantage, even though gratuitous, such as the loss of customers, of a
permanent home at a friend’s, or advancement in life, and such like, if
the immediate and direct consequence of the words, will sustain the
action. 1 Starkie on Slander, 158 to 186, Ed. of 1843. If this
description of special damage is to be regarded as the gist and
foundation of the action, I rather think the principle should be
regarded as peculiar to that species of injury. I am not aware of any
class of remedies given for a violation of the rights of property, where
so remote and contingent a damage has been allowed as a substantial
ground of action.
But the law applicable to the cases referred to proceeds upon the ground
that the plaintiff, by the wrongful act complained of, has been deprived
of the present, actual enjoyment of some pecuniary advantage. No such
damage can be pretended here. At best, the contemplated gift was not to
be realized till after the death of the testator, which might not happen
until after the death of the plaintiff; or the testator might change his
mind, or lose his property.
In short, the plaintiff had no interest in the property of which he says
he has been deprived by the fraudulent interference of the defendant,
beyond a mere naked possibility; an interest which might indeed
influence his hopes and expectations, but which is altogether too
shadowy and evanescent to be dealt with by courts of law.
I am of opinion that the defendant is entitled to judgment.
_Ordered accordingly._[554]
LEWIS _v._ CORBIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 15, 1907.
_Reported in 195 Massachusetts Reports, 520._
Action of tort. Demurrer to declaration.
KNOWLTON, C. J.[555] This is an action of tort in which the defendant is
charged with having deprived the plaintiff of a legacy, through his
fraud in inducing a testatrix to execute the codicil by which the legacy
purported to be given with only one witness, whereby the codicil was
rendered invalid. The legatee named in the codicil was the plaintiff’s
father, who had deceased before the codicil was made, although neither
the testatrix nor the defendant then knew of his death.
One question is whether this legacy, which would be void at common law
(see Maybank _v._ Brooks, 1 Brown Ch. 76; Dildine _v._ Dildine, 32 N. J.
Eq. 78, 80; Moss _v._ Helsley, 60 Tex. 426, 436), is within the R. L.
chap. 135, sec. 21, which provides that when a devise or legacy is made
to a child or other relation of the testator who dies before the
testator, leaving issue surviving the testator, such issue shall take
the gift unless the will requires a different disposition of it.
* * * * *
We are of opinion that the purpose of the Legislature is best
accomplished by holding the statute applicable to devises and legacies
given to relations who died before the making of the will, as well as
legacies and devises to those who died after the making of the will.
* * * * *
The defendant contends that the plaintiff’s declaration fails to aver
damage suffered by him on account of the defendant’s misconduct. It is
true, as he argues, that in order to create a liability of this kind,
there must be, not only a wrong inflicted by the defendant, but damage
to the plaintiff resulting directly therefrom. Lamb _v._ Stone, 11 Pick.
527, 534, 535; Wellington _v._ Small, 3 Cush. 145, 149; Bradley _v._
Fuller, 118 Mass. 239, 241. See also Jenks _v._ Hoag, 179 Mass. 583,
585; Freeman _v._ Venner, 120 Mass. 424, 426, 427; Adler _v._ Fenton, 24
How. 408, 410.
In this case the averments are, in substance, that the defendant was the
executor and residuary legatee named in a will of one Jane V. Corbin,
and that she formed a purpose to give a legacy of $5000 to Henry G.
Lewis, the plaintiff’s father, who was her second cousin, that she was
over eighty years of age, and, for advice and assistance in matters of
business, was dependent upon the defendant, who occupied a confidential
relation towards her, that, wrongfully and fraudulently intending and
contriving to defeat her will and intention, and to deprive and defraud
Henry G. Lewis and his heirs of the sum of $5000, he advised and
procured the testatrix to execute a codicil to her will in the presence
of only one witness, namely, the defendant, whereas the law of Rhode
Island required the execution of the codicil in the presence of more
than one witness, as the defendant well knew. It is then averred that
the estate of the testatrix was large, and that, if the codicil had not
failed for want of due attestation owing to the fraud practised by the
defendant, the plaintiff would have received about $1650.
Whether a person named as legatee has a remedy, in a case like this, is
a question which, so far as we know, has never been decided in this
Commonwealth. See Melanefy _v._ Morrison, 152 Mass. 473, 476. The
testatrix, desiring to give the legacy and intending to express her
desire in a way that would be effectual after her death, unless in the
meantime she should change her purpose, was fraudulently induced to
express it ineffectually, when she supposed that she had made a legal
and valid codicil. Plainly such fraudulent conduct was a wrong upon the
plaintiff as well as upon the testatrix. The question in the case is
whether the plaintiff has averred sufficient facts to show that damage
resulted to him directly as a consequence of the wrong. The defendant
relies strongly upon Hutchins _v._ Hutchins, 7 Hill, 104, decided by the
Supreme Court of New York. The declaration in that case charged that the
plaintiff’s father had made a will devising a farm to the plaintiff, and
that the defendants, who were interested in the testator’s estate, he
being a feeble man, advanced in years, and incapable of transacting
business, fraudulently induced him to make another will in which the
devise to the plaintiff was omitted. The case was heard on a demurrer.
The court said “Fraud without damage, or damage without fraud gives no
cause of action; but where both concur, an action lies.... The only
foundation of his claim rests upon the mere unexecuted intention of his
father to make a gift of the property, and this cannot be said to have
conferred a right of any kind. To hold otherwise and sanction the
doctrine contended for by the plaintiff would be next to saying that
every voluntary courtesy was matter of legal obligation, and that
private thoughts and intentions concerning benevolent or charitable
distributions of property might be seized upon as the foundation of a
right which the law would deal with and protect.... But the law
applicable to the cases referred to proceeds upon the ground that the
plaintiff, by the wrongful act complained of, has been deprived of the
present actual enjoyment of some pecuniary advantage. No such damage can
be pretended here. At best the contemplated gift was not to be received
until after the death of the plaintiff, or the testator might change his
mind, or lose his property.” This case has been cited with approval in
this Commonwealth and elsewhere. Randall _v._ Hazelton, 12 Allen, 412,
416; Emmons _v._ Alvord, 177 Mass. 466, 471; Adler _v._ Fenton, 24 How.
408, 410. We have been referred to no other decision upon similar facts,
and we have found no other. It seems pretty plain that, if a suit were
brought in the lifetime of the testator, immediately after the practice
of the fraud, no substantial damage could be recovered. Very likely the
court was right in deciding that no action could be maintained. The
plaintiff’s relation to the subject to which the fraud was directed was
not close enough to cause him pecuniary loss, apart from the happening
of subsequent events. Even if there were no fraud the legacy might never
take effect. The testator might lose his property, or destroy his will,
or make a different one. But the fraud put the plaintiff in a less
advantageous position than he otherwise would have occupied in reference
to the probability of receiving property under the will, and this change
of position, accomplished by a fraud, naturally and probably might
deprive him of that which, with fair dealing, he would receive. It seems
to us that, while the fraud does not cause substantial damage apart from
the happening of subsequent events which reasonably may be expected to
happen, if these do happen, the defendant is chargeable with the natural
consequences of his act. Suppose, in the present case, that the
testatrix did not change her purpose to give the legacy of $5000 to
Henry G. Lewis, and that for the rest of her life she desired and
intended that this legacy should take effect, and thought that it would
take effect. The fraud then would be operative up to the time of her
death, and would accomplish the result intended by its author, by
depriving the legatee of that which otherwise he would have received. It
is averred that the testatrix left an estate sufficient to pay all or
nearly all of this legacy, with the others. If the facts supposed above
are proved, does it not follow that the fraud directly and proximately
caused the plaintiff’s loss of his legacy? The defendant cannot complain
that these supposed facts followed as conditions concurring with his
fraud to cause the damage. His fraud was planned in reference to the
probability that these events would follow. In Hutchins _v._ Hutchins,
_supra_, there was no averment to show that the fraud was operative up
to the time when the title to the property was changed by the death of
the testator. The court treated the case as if the testator might have
changed his purpose as to the disposition of his estate, for reasons of
his own independently of the fraud.