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strued in a milder sense ('mitiori sensu") merely because it is capable, by a forced construction, of being interpreted in an innocent sense. For example: The defendant publishes of the plaintiff the following words: 'You are guilty of the death of D.' This is an imputation of the commission of murder, and is not to be construed • mitiori sensu.'1

It should, however, be clear, in order to make language actionable without proof of damage, that the imputation was slanderous or libellous (according to its nature) within the meaning of some one of the above stated five classes. If this be not the case, it will not be deemed a breach of the duty; and this too whether the question of interpretation come before the court or before the jury. In one case, at least, the interpretation adopted has been apparently contrary to the understanding of men of ordinary intelligence; and that is where an imputation is made of what would ordinarily be understood as a crime, but the language of which does not necessarily import a crime in the legal sense. For example: The defendant publishes of the plaintiff the following words: He has taken a false oath against me in Squire Jamison's court.' This is deemed not to be an imputation of the commission of perjury; the term 'perjury' signifying the taking of a false oath knowingly, before a court of justice, with reference to a cause pending.

2

Apart from this particular exception in regard to the

1 Peake v. Oldham, 1 Cowp. 275; Cases, 122.

2 Ward v. Clark, 2 Johns. 10; Cases on Torts, 128. See Crone Angell, 14 Mich. 340; Brown v. Hanson, 53 Ga. 632. 'The offence need not be specified . at all if the words impute felony generally. But if particulars are given, they must be legally consistent with the offence imputed.' Pollock, Torts, 220, 2d ed., referring to Jackson v. Adams, 2 Bing. N. C. 402. See Stitzell v. Reynolds, 67 Penn. St. 54; Brown v. Myers, 40 Ohio St. 99; Underhill v. Welton, 32 Vt. 40. But see Stroebel v. Whitney, 31 Minn. 384.

legal sense of a crime, it follows from what has been said that it is immaterial whether the defamatory charge be affirmative and direct, or indirect so as to be matter of inference merely, or that it is ironical, or that it is made in allegory or other artful disguise. It is enough that the charge would naturally be understood to be defamatory by men of average intelligence.

§ 3. OF THE PUBLICATION OF DEFAMATION AND SPECIAL DAMAGE.

In accordance with observation 5, in the introductory section, it should be noticed that defamation is not published when addressed only to the plaintiff, no one else being present1 who could understand the language.2 That is, the language or representation cannot in such a case be actionable. And this is true, though the alleged wrong be directly followed by great dejection of mind on the part of the plaintiff, and consequent sickness and inability to carry on his usual vocation, and expense attending upon his restoration to health or upon the employment of help to carry on his business. For example: The defendant says to the plaintiff, 'You have committed adultery with F.' The plaintiff, a farmer, suffers immediate distress of mind and body, becomes sick and unable to attend to his work, his crops suffer, and he is compelled

1 Sheffill v. Van Deusen, 13 Gray, 304. See Marble v. Chapin, 132 Mass. 225, 226. Communication of defamation by the defendant to his wife has lately been held in England not to be publication. Wennhak v. Morgan, 20 Q. B. D. 635. But an accusation of the husband in the presence of his wife (or the converse) would be a publication. Nolan v. Traber, 49 Md. 460; Hawver v. Hawver, 78 Ill. 412; Duval v. Davey, 32 Ohio St. 604. See Wenman v. Ash, 13 C. B. 836, which suggests a doubt in regard to accusations of the wife made to the hus band.

2 See Hurtert v. Weines, 27 Iowa, 134.

to employ extra help to carry on necessary work. The defendant has not violated any legal duty to the plaintiff.1

Indeed, if the language complained of be not actionable per se (that is, if it be not actionable without the proof of special damage), the fact that the publication of the defamation occurred in the presence of a third person who, by authority, reported it to the plaintiff with such a result as that stated in the foregoing example, would not, it is held, make the defamer liable.2

This, however, proceeds upon the ground that the effect of distress of mind, followed by sickness, is not such damage as the law requires when the defamation is not actionable per se. The rule of law upon this subject is, that defamation not actionable per se may be a breach of duty if it be attended with special damage. But special damage (and damage of a general nature as well) must be the natural and usual result of the wrong complained of, as effect follows cause; and, as it is sometimes declared in effect, mental distress with its consequences will not satisfy this doctrine, effect upon the mind and then upon health being largely due to individual peculiarities, and not being certain or uniform. Or, better still, damage resulting from fear of injury to reputation, or from wounded feelings, is not damage to reputation; that can only be injured when it has been defamed before a third person.

1 Compare Terwilliger v. Wands, 17 N. Y. 54, 63, and Wilson v. Goit, Id. 442, which, taken together, justify the example.

2 Terwilliger v. Wands, 17 N. Y. 54, 63, reaffirmed in Wilson v. Goit, Id. 442, and overruling Bradt v. Towsley, 13 Wend. 253, and Fuller v. Fenner, 16 Barb. 333. But see McQueen v. Fulgham, 27 Texas, 463.

3 Such damages are commonly spoken of as 'remote.' Comp. Vic torian Rys. Comm'rs v. Coultas, 13 App. Cas. 222. But the authorities are not quite consistent; mental distress being treated as ground for damages if a right of action is otherwise shown. See ante, pp. 18, 19; Warren v. Boston & M. R., 163 Mass. 484, 487.

The damage complained of must then in all cases, whether general or special, have been sustained through the action of a third person. Special damage may so result in several ways, so as to make the publication of defamation actionable when it would not be actionable per se; as by the loss of a marriage. For example: The defendant charges the plaintiff, an unmarried female, with unchastity in the presence and hearing of C, to whom the plaintiff is engaged to be married. C, in consequence of the charge, terminates the engagement. The defendant is liable to the plaintiff.1

3

The same would be true of the loss of the consortium of wife and perhaps of husband. The same would also be true of the refusal to the plaintiff of civil entertainment at a public house. So of the fact that the plaintiff has been turned away from the house of her uncle, and charged not to return until she shall have cleared up her character; and so in general of the loss by the plaintiff even of gratuitous hospitable entertainment."

5

The special feature of the law of slander and libel, however, consists in this, that defamation may be actionable per se; and the consideration of the various phases of such defamation will now follow. Let it be clearly observed, that in defamation arising under any of the heads now to be separately examined, the plaintiff establishes the breach of duty, and consequently his right to

1 See Terwilliger v. Wands, 17 N. Y. 54, 60. But see McQueen v. Fulgham, 27 Texas, 463.

2 Bigaouette v. Paulet, 134 Mass. 123.

8 See Lynch v. Knight, 9 H. L. Cas. 577; Jaynes v. Jayncs, 39 Hun, 40; Warner v. Miller, 17 Abb. N. C. 221; Breiman v. Paasch, 7 Abb. N. C. 249. See post, chapter viii. § 4.

39.

4 Olmsted v. Miller, 1 Wend. 506. See Moore v. Meagher, 1 Taunt.

5 Williams v. Hill, 19 Wend. 305.

6 Id.; Moore v. Meagher, 1 Taunt. 39; ante, p. 5.

recover, by simply proving publication. In cases of defamatory publications not falling under the following heads, the plaintiff must also prove damage; that is the only difference between the two classes of cases.

§ 4. OF THE IMPUTATION OF HAVING COMMITted a Crime.

Different rules have obtained in different States concerning the nature of the offence the false imputation of which is actionable per se. In some States it has been laid down that, unless the offence charged is indictable and involves moral turpitude, or unless it is one the punishment of which is infamous, there is no right of action without proof of special damage. A punishment is infamous at common law which disqualifies the offender from being a witness in the courts; a punishment is not infa mous when, for instance, it is named in the same category with the punishment of trivial offences, such as vagrancy, begging, and fortune telling, and a charge of such an offence would not be actionable per se. For example: The defendant publishes of the plaintiff the charge 'She is a common prostitute.' The punishment of this offence, where charged, is classed with the punishment of trivial offences such as those just mentioned. The defendant is not liable without proof of special damage.2

1 Webb v. Beavan, 11 Q. B. D. 609.

2 Brooker v. Coffin, 5 Johns. 188; Cases on Torts, 126; Davis v. Carey, 141 Penn. St. 314; McQueen v. Fulgham, 27 Texas, 463; Underhill v. Welton, 32 Vt. 40; Pollard v. Lyon, 91 U. S. 225. See also as to disgracefulness, Andres v. Koppenheaver, 3 Serg. & R. 255. Perhaps charges of crime punishable by imprisonment in a state prison would cover this class of cases. Common-law punishments of the pillory, stocks (?), and the like were infamous; but these are of the past. Ex parte Wilson, 114 U. S. 417. Punishment of simple assaults or batteries is not infamous. Andres v. Koppenheaver, supra; Billings v. Wing, 7 Vt. 439.

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