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with the plaintiff Jane as his wife; and the plaintiff William, influenced solely by the defendant's said slanders, and then believing that the statements so made by the said defendant, who was the stepbrother of his wife, were true, shortly after the speaking of said matter by the defendant, and in consequence thereof, was induced to refuse, and did in fact refuse to live any longer with the plaintiff Jane as his wife, and on the contrary, the plaintiff William required the father of the plaintiff Jane, who lived in the country, to take her home to his own house, which he accordingly did; and the plaintiff Jane, in fact, thereupon left Dublin and returned to her father's house, where she resided for a considerable time, separated from her said husband. And the plaintiffs aver that such separation was solely and entirely caused by and resulted from the acts of the defendant as aforesaid." And the plaintiffs aver that they have sustained damage. . . . The defendant demurred to the plaint upon the grounds, that the words not being actionable in themselves, the special damage assigned was too remote.... The jury found a verdict for the plaintiffs, damages £150. The Court of Queen's Bench having overruled the demurrer, judgment was given for the plaintiffs on this finding. The case was then taken on error to the Exchequer Chamber, where the judges were divided in opinion, but the judgment was affirmed. The present proceeding in error was then brought.

Mr. Borill and Mr. Quain for the plaintiffs in error. There is no precedent for such an action as this to be found in any of the books. It is not pretended that this action was maintainable without special damage. If so, that damage must be a consequence arising naturally and necessarily from the words spoken. The husband turning the wife out of doors is not such a consequence, for he says the words are false. [The Lord Chancellor, Lord CAMPBELL: It would be a natural consequence in a certain rank of life; the defendant cannot say that what he stated was not true and ought not to have been believed, for he must have meant it to be believed.] . . . Here too the act, really injurious to the wife, was the act of the husband. Suppose that, instead of turning his wife out of doors, the husband had beaten her, and then found the charge against her was false. Surely he could not have sustained any action in respect of his own wrongful act. [The LORD CHANCELLOR: But the plaint alleges special damages in respect of personal suffering by the wife alone. Lord WENSLEYDALE: The loss of the society of her husband.]... In Vicars v. Wilcocks (8 East, 1) the master wrongfully dismissed the plaintiff on a slanderous statement; as the dismissal was not the legal consequence of the statement, the action was held not maintainable. [Lord BROUGHAM: The master is not bound to institute an action, to try whether the slander is true; but if not, then the person injured is injured by its being false, and the slanderer being the cause of the injury, is not the action maintainable in respect of that injury?] No. Suppose a man bought a cargo of

wheat and was then told that it was bad, and so refused to take the cargo; when he found out that what he had been told was untrue, he could not maintain an action against the slanderer for the loss he had suffered by refusing to take the cargo. [LORD CHANCELLOR: It must not be laid down as a universal rule that a man cannot maintain an action if he is induced by false representations to do an act which occasions him damage. The real question is, whether under the circumstances his conduct is reasonable, not simply whether it is wrongful.] . . . The Solicitor-General (Sir W. Atherton) and Mr. Exham (of the Irish bar) for the defendants in error. It is admitted that the words here are not actionable in themselves. . . . It is said that the damage must be the natural result of the words; correctly stated, the proposition would be, must be the natural actual result. It is so here. If the words were true, it is the natural actual result in every sense of that term; and the slanderer cannot be permitted to say that they are not true. He intended that the husband should believe them; the husband did believe them, and he sent his wife back to her father. [The Lord CHANCELLOR: But is there anything here which, if true, would justify the husband in sending her back?] There is, and the innuendo sufficiently alleges it. . . . [Lord WENSLEYDALE. And he had no right at all to turn her away if what was stated was not true.] But it was a natural and probable result of the words that he should act on them as true. Every man should be taken to be answerable for the consequences of his own acts, Ward v. Weeks (7 Bing. 211), and therefore the defendant must be taken to have foreseen and intended the mischief he caused. . . . It is not enough to say in order to justify the denial of this right of action, as in Vicars v. Wilcocks (8 East, 1), that an action of another sort against other persons might be maintained. . . . No doubt the husband himself could not complain of his own wrongful act; but he is necessarily joined for conformity, the wife being the person who has sustained the injury through the act of the defendant. The matter of form cannot affect her substantive right. . . .

Lord BROUGHAM (17 July). My Lords, in this case I will read the judgment of my noble and learned friend, the late Lord Chancellor. He says:

"After much consideration, I agree with the two dissenting judges in the Court of Exchequer Chamber. . . . Were it not for one defect in the case of the plaintiffs, I should have agreed with them, and I think that all the other objections to the action were properly overruled. I place no reliance on the objection, that in a case like the present the imputation cast on the wife being false, the act of the husband in separating from her is wrongful, and therefore he cannot join as plaintiff in an action, the foundation of which is his own wrongful act. If his dismissal of the wife from his house would have been reasonably justifiable, had the words spoken been true, and this act was a natural, probable, and direct consequence of the imputation, I do not think that the defendant could

avail himself of the objection of the imputation being false, he having intended the husband to believe that it was true, and having intended the husband to act upon it. Mr. Bovill observed, that 'the husband ought to have kicked the slanderer out of his house, and not his innocent wife.' But we cannot hear such language from the mouth of his client, the slanderer. I am of opinion that in the present case the action is not maintainable, because, looking to the frame of the declaration, the loss or special damage relied upon is not the natural and probable consequence of the injury complained of, viz., the speaking of the slanderous words. It is allowed that the words are not actionable in themselves.... Had those words contained a charge of adultery by the wife, which the defendant pretended to know, and which he asserted as a fact, I should have thought the allegation of special damage sufficient to support the action. In that case the husband, believing the charge to be true, would have been justified in separating from his wife, and this separation would have been the natural and probable consequence of the slander. But, examining the words actually spoken as set out in the plaint, they contain no charge of adultery, nor any imputation of any kind which, if true, would justify the act of the plaintiff William, or would induce any reasonable man to do such an act. The specific charge excludes adultery, and the general charges amount only to levity of manners, requiring vigilance on the part of the husband, and the advice given was consistent with her remaining in the conjugal society of her husband. . . .”

My Lords, I entirely agree with my late noble and learned friend, in his observations, which I have read, upon this case, with this exception, that I am rather inclined to think (though that has become immaterial), that the action does not lie. The words here are not such as would in an ordinary case, and with ordinary persons, naturally produce the effect which they appear to have produced in this case. That is the ground upon which I would hold that the judgment of the Court below is wrong.

Lord WENSLEYDALE. . . . The questions in the case are two: 1st. Whether a wife can maintain an action for the loss of the consortium of the husband by a wrongful act of the defendant (joining, of course, her husband for conformity)? and, 2d. Whether the loss of that consortium is sufficiently connected with and shown to be the consequence of the defendant's wrongful act in this case, so as to be actionable?

There is a considerable doubt upon both these questions, but particularly on the first. I have made up my mind that no such action will lie.1 . . . This view of the case makes it unnecessary to consider whether the slander of the defendant has been proved to be the cause of the loss, the desertion by the husband so as to make the words actionable, they not being so unless they have caused a special damage. Upon this question I am much influenced by the able reasoning of Mr. Justice CHRISTIAN. I strongly incline to agree with him, that to make 1 [On grounds involving the principles of Nos. 39, 86, ante.]

the words actionable, by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned might fairly and reasonably have been anticipated and feared would follow from speaking the words, not what would have reasonably followed, or we might think ought to follow. I agree with the learned Judges, that the husband was not justified in sending his wife away. I think he is to blame; but I think that such deliberate and continued accusations, of such a character, coming from such a quarter, might reasonably be expected so to operate, and to produce the result which they did.

In the case of Vicars v. Wilcocks (8 East, 1), I must say that the rules laid down by Lord ELLENBOROUGH are too restricted. That which I have taken from Mr. Justice CHRISTIAN seems to me, I own, correct. I cannot agree that the special damage must be the natural and legal consequence of the words, if true. Lord ELLENBOROUGH puts, as an absurd case that a plaintiff could recover damages for being thrown into a horsepond, as a consequence of words spoken; but I own I can conceive that when the public mind was greatly excited on the subject of some base and disgraceful crime, an accusation of it to an assembled mob might, under particular circumstances, very naturally produce that result, and a compensation might be given for an act occurring as a consequence of an accusation of that crime.

I think the judgment of the Court of Exchequer Chamber should be reversed.

453. GUILLE v. SWAN

Judgment reversed.

SUPREME COURT OF NEW YORK. 1822

19 Johns. 381

IN error, on certiorari, to the Justices' Court in the city of New York, Swan v. Guille, in the Justices' Court, in an action of trespass, for entering his close, and treading down his roots and vegetables, &c., in a garden in the city of New York. The facts were, that Guille ascended in a balloon in the vicinity of Swan's garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan's field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the further end of the premises. When the balloon descended, more than two hundred persons broke into Swan's garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about fifteen dollars, but the crowd did much more. The plaintiff's damages, in all, amounted to ninety dollars. It was contended before the Justice, that Guille was answerable only for

the damages done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for ninety dollars, on which the judgment was given, and for costs. The cause was submitted to the Court on the return, with the briefs of the counsel, stating the points and authorities.

SPENCER, Ch. J., delivered the opinion of the Court. The counsel for the plaintiff in error supposes that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that therefore there was no union of intent; and that, upon the same principle which would render Guille answerable for the acts of the crowd in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises.

The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional or unintentional, trespass is the proper action to redress the wrong. . . . In Leame v. Bray (3 East Rep. 595), Lord Ellenborough said: If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen and mischief ensue, I am answerable in trespass; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.

I will not say that ascending in a balloon is an unlawful act, for it is not so; but it is certain that the aeronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly liable for all the injury sustained.

Judgment affirmed.

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