cases, and may be regarded as declaratory of the established principle governing this class of actions. Applications of this rule are found in the cases of clergymen, physicians, lawyers, tradesmen, mechanics, etc. Thus, to accuse a clergyman of incontinence, a physician of being a quack or humbug, a lawyer of being an ignoramus, a watchmaker of being a bungler, when spoken of them in their respective callings, is actionable per se, without proof of special damage. In Day v. Buller, supra, which as an action against the defendant for slandering the plaintiff in his profession as an attorney, the words were, "What! Does he pretend to be a lawyer? He is no more a lawyer than the devil." It was held he was entitled to recover, the words having been spoken of him in his professional character, and so tending to injure him in his business as an attorney. But in another case, where an attorney was plaintiff, and the words were "He has defrauded his creditors, and been horse-whipped off a race-course,' the words were held not actionable, without proof of special damage having been spoken of the plaintiff in his individual capacity. Doyler v. Roberts, 3 Bing. 835. To say of a physician, if spoken of him in his profession, he is "no scholar," was held actionable. Starkie on Slander, 112. But to say of him he is a "dunce," if spoken of him only as an individual, gives no right of action. The citation of analogous cases might be multiplied indefinitely, but it is unnecessary. It may be added that this distinction between the cases, of words spoken of a person in a particular calling and those spoken of him individually, is everywhere recognized and acted upon by the Courts in action for libel and slander. Applying the rule as above stated to the facts of the present case, there can be no pretence for saying that the words, as alleged in the declaration and admitted by the demurrer, are not actionable per se. To say of the plaintiff, "The poor fellow is crazy," and that his appointment could be regarded in no other light than a public calamity, with other similar statements made and repeated after the defendant had been notified that the plaintiff had referred to him as to his qualifications as an architect, was, if the words were untrue, a grievous slander, which would naturally and almost necessarily tend to the plaintiff's injury. It was tantamount to a direct and positive assertion that the plaintiff was destitute of the necessary qualifications for the proper discharge of the duties of an architect. In actions for slander and libel, the rule no longer is, that words are to be understood in mitiori sensu, but they are to be taken according to their plain and natural import. The Supreme Court of Massachusetts say: "The old rule is exploded, and the more sensible course is to give the natural meaning and effect to the terms, according to the spirit and temper in which they appear to have been used." 13 Mass. 247, supra. But it is not necessary to invoke that rule, for here the words are plain and unambiguous, and are susceptible of only one meaning. As to the plaintiff's claim for special damages by reason of the loss of his position as architect of the San Francisco City Hall, we are inclined to the opinion that no case is shown for the recovery of such damages under the allegations of the declaration. . . Being of opinion that the Court below erred in sustaining the defendant's demurrer to the declaration, the judgment is reversed and the cause remanded for further proceedings. Reversed and remanded. 151. OHIO & MISSISSIPPI RAILWAY COMPANY v. PRESS PUBLISHING COMPANY UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK.. 1891 48 Fed. 206 AT LAW. On motion for judgment on demurrer. Action by the Ohio & Mississippi Railway Company against the Press Publishing Company for libel. Defendant demurred to the complaint, on the ground that "it appears on the face of the complaint that the said complaint does not state facts sufficient to constitute a cause of action." Plaintiff moved for judgment on the demurrer as frivolous. Butler, Stillman and Hubbard, for plaintiff. Lowrey, Stone and Auerbach, for defendant. LACOMBE, Circuit Judge. The demurrant has wholly mistaken the cause of action set forth in the complaint. Defendant's publication is not declared upon as a "libel on a thing." A corporation, though an artificial person, may maintain an action for libel; certainly for language concerning it in the trade or occupation which it carries on. Insurance Co. v. Perrine, 23 N. J. Law, 402; Mutual Reserve Fund Life Ass'n v. Spectator Co., 50 N. Y. Super. Ct. 460; Omnibus Co. v. Hawkins, 4 Hurl. & N. 87, 146; Bank v. Thompson, 18 Abb. Pr. 413. It is elementary law that every legal occupation from which pecuniary benefit may be derived creates such special susceptibility to injury by language charging unfitness or improper conduct of such occupation that such language is actionable, without proof of special damage. The complaint avers that plaintiff is a railway corporation, duly organized and existing under the laws of the States of Ohio, Indiana, and Illinois, and a common carrier of goods and passengers, and that it maintains and operates certain lines of railroad. The occupation of the plaintiff, therefore, is the proper, safe, and business-like maintenance and operation of its railroad, so that it may reasonably discharge its duties as such common carrier of goods and passengers. Language which charges the plaintiff with such incapacity or neglect in the conduct of its business that belief in the truth of the charges would, as a natural and proximate consequence, induce shippers of goods and passengers to refrain from employing the plaintiff as such common carrier, is actionable without proof of special damage. The particular language complained of here is the statement in defendant's newspaper that "over one-half of the ties in the road-bed [of the plaintiff] are rotten, and it is dangerous to run trains very fast." Such a publication is manifestly within the principle above laid down; and, as the complaint further avers that the statement was "false, . . . malicious, and made for the purpose of injuring the credit and business of the plaintiff," a cause of action is set forth in the complaint. Motion for judgment on the demurrer as frivolous is granted.1 The defendant said of the plaintiff, president of a miners' labor-union, that he was in the pay of the mine-owners. Was this actionable? (McLaughlin v. Miller, 32 Ill. App. 54.) The defendant said of the plaintiff, a physician, "Dr. S. killed my children. He gave them teaspoonful doses of calomel, and it killed them." Was this actionable? (1854, Secor v. Harris, 18 Barb. 425.) The defendant said of the plaintiff, a brewer, "He was in a sponging-house for debt within the last fortnight, and I can produce the man who locked him up." Was this actionable? (1841, Jones v. Littler, 7 M. & W. 423.) The defendant said of the plaintiff, a physician, "He is a first or second fool." Was this actionable? (1900, Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526.) The defendant bank, on presentation of a check by a payee in whose favor the defendant had drawn it, refused to pay, falsely saying that there were no funds to the plaintiff's credit. Was this actionable? (1896, Svendsen v. State Bank, 64 Minn. 40, 65 N. W. 1086.) The defendant said of the plaintiff, a merchant, that he was habitually slow in paying his debts. Was this actionable? (1899, Seebold v. Tatlie, 76 Minn. 131, 78 N. W. 966.) Action on the case for these words uttered of the plaintiff, being an attorney: "He is a base cheating cozening knave, and hath cheated me as never any man was cheated." The question was, whether an action would lie for these words? for if he had not shewn that he was an attorney, an action would not have lien; and as it is laid barely, without any circumstance, it doth not appear that it toucheth him in his profession. The Court therefore would advise. (1639, Jeffries v. Payham, Cro. Car. 510.) The defendant, a Roman Catholic clergyman, said of the plaintiff, a physician in the congregation, who had married again immediately after being divorced, "I refuse to go where that person is, because I would not meet an excommunicated person. If any of you are sick and want my assistance, you need not send for me if this person is there"; in consequence of which his patients all ceased to patronize him. Was this actionable? (1890, Morasse v. Brochu, 151 Mass. 567.) NOTES: "Slander of credit: Dishonor of check." (H. L. R., XV, 757.) "Officer of corporation defamed: Suit by corporation." (H. L. R., XIV, 289.) "Acts and words actionable: Words imputing unchastity to woman.' (H. L. R., XX, 578.) "Acts and words actionable: Suit by corporation because of defamation of its former officer." (H. L. R., XXI, 60.)] 152. VAN VECHTEN VEEDER. History and Theory of the Law of Defamation. (1904. Columbia Law Review, IV, p. 33, at p. 48.) The law with respect to slander leaves much to be desired. It is obvious that the class of slanders which are most dreaded, which inflict the greatest amount of pain, which occur most frequently, and which are most likely to lead to breaches of the peace and other evils abhorred by the law, are not those imputations comprised within the fourfold rule of actionable slander, but imputations of breaches of social code, the code of honour - untruthfulness, cowardice, treachery, and the like. And yet for such slanders the law provides no redress whatever; for they are not within the list of words actionable per se, nor are they likely to lead to such consequences as the law contemplates under the term special damages. It is actionable to say of a man that he is physically diseased; but you may call him a liar, with impunity. You may not say of a surgeon that he is a bad operator, or of a lawyer that he is ignorant of the law; but you may tell any stories you please about his private life and to the discredit of his personal character. And, most scandalous of all, in England, until very recently, any one was at liberty to slander a woman by the vilest forms of oral imputations upon her chastity, and the law gave her no redress.i I. If, now, taking the law of slander as we find it, we examine the basis of the actionable quality of the particular imputations of which it is made up, it will be found to be as irrational and inconsistent as the selection itself. The principle of selection is past finding out. The one thing that is clear is that the right to reputation seems to have been completely lost sight of. Certain imputations are actionable not because they are defamatory, but for some other reason. . . . a. An imputation of an indictable offence is said to be actionable per se because it tends to subject one to legal penalties, or, as it was put later, to degrade him in the public estimation. The application of the rule is anomalous. . . . To call him a rogue, a rascal, a swindler, surely exposes him to degradation; but such accusations are not actionable, because they do not endanger him in point of law ! . . . b. It is actionable to impute certain contagious disorders, because they tend to exclude a person from society on the ground of physical (not of moral) taint. It is actionable to charge one with having the plague, leprosy, or syphilis; but it is not actionable to charge one with having had these diseases, or with having any other than those named. A person is not degraded by 1 This remarkable state of the law may be explained by reference to the common use of gross language as late as the beginning of the eighteenth century, and to the fact that for centuries the ecclesiastical courts had jurisdiction over such charges. See Ogden v. Turner (1704), Holt, 40; 6 Mod. 104. The local courts of the City of London took cognizance of such imputations because of the local custom of carting and whipping prostitutes. When the ecclesiastical courts lost their jurisdiction, such imputations might be made with entire immunity from legal action. In Lynch v. Knight (1861), 9 H. L. Cas. (577) 593, Lord Campbell commented upon the "unsatisfactory" state of the law; Lord Brougham denounced it as "barbarous." See also Jones v. Herne (1759), 2 Wils. 89, and Roberts v. Roberts (1864), 5 B. & S. 384 [supra, No. 143]. By the Slander of Women Act of 1891 (54 & 55 Vict. c. 51) the English law reached the plane of the Mosaic system. In this country such imputations were in many jurisdictions held to be actionable, in the absence of statutory enactments; but the matter is not commonly covered by statute. 2 See on this subject Solicitors' Journal, XI, 1053, 1054. having leprosy or the plague, as he is by having syphilis; and it is as disgraceful to have any other venereal disease as to have syphilis. The rule has also been put upon the ground of an unfitness to be admitted into society. This would apply equally to small-pox, or an infectious fever, neither of which is actionable. c. Scandal of a person in the way of his profession, or trade, or means of livelihood, is actionable, because his pecuniary emoluments may be lost. Apart from the conduct of his business, you may freely impute to a merchant all the moral vices; but you must not call him a bankrupt. . . . d. Finally, any defamatory words spoken of one become actionable upon proof of special damage. In this and in the scandal of a person in relation to his means of livelihood, the law is based squarely upon a pecuniary test. . . . II. There are three obvious methods of reforming the law of slander. 1. The method commonly adopted among English-speaking peoples is to leave intact the general distinction between libel and slander, and merely remove its worst hardships by extending the list of defamatory imputations which are actionable per se when published orally. This course has been adopted in England with respect to imputations upon the chastity of women; but there it has stopped. Such imputations are believed to be universally actionable in this country. In some States further additions have been made by statute to the list of oral imputations which are actionable: adultery or want of chastity in general; impotence; incest and crimes against nature;' false swearing; all words, which from their usual construction and common acceptation, are considered as insults, and lead to violence and breaches of the peace. 4 This patch-work plan is quite in accordance with the spirit of English law reform; but it has little else to commend it. No doubt it is an improvement in the law simply to enact that imputations upon chastity, and some other additions of a like nature, shall be actionable per se. But this course does nothing towards removing the theoretical absurdity of the existing law; it would be, moreover, at best merely temporary and imperfect. The injury and annoyance inflicted by particular imputations vary in different classes of society, in different places and circumstances, and especially at different periods. No possible foresight in the enumeration of actionable slanders could make the law reasonably just and equal, even for the present generation; and the next generation would have to do the whole work over again to meet altered conditions. Moreover, no change of this kind could give the relief required without a change also with regard to the special damage sufficient to support an action of slander. Any list of actionable slanders could only include such as are ordinarily likely to produce serious discomfort and loss of credit and respect; but manifestly there must be cases in which those evils would in fact result from other imputations not included in such a list. Yet to extend the protection of the law in such cases by changing the definition of special damage 1 Arkansas, California, Illinois, North Carolina, North Dakota, Oklahoma, South Dakota, and Tennessee. The Georgia statute allows an action in general terms for imputations of any debasing act which may exclude a person from society, and specifically provides for a charge "against a free white female of having sexual intercourse with a person of color." 2 California, North Dakota, Oklahoma, South Dakota. 3 Indiana and Washington. 4 Arkansas and Illinois. 5 Mississippi, Virginia, and West Virginia. |