LIBEL WHEN DAMAGE PRESUMED

71. Matter addressed to the eye, which is calculated to bring one into hatred, contempt, ridicule, or obloquy, to cause him to be shunned or avoided, or to injure him in his office or calling, is libelous, and actionable, without averment or proof of special damage.119

It is evident that all imputations constituting slander per se are libelous, without proof of special damage, if addressed to the eye.120 But libel is much broader in scope, since it embraces matter which exposes to hatred, contempt, ridicule, or obloquy.121 It is enough that "the necessary effect of what was stated respecting the plaintiff is to injure his reputation and lower him in the esteem and opinion of the community." 122 "Much," it has been said, "which if only spoken might be passed by as idle blackguardism, doing no discredit save to him who utters it, when invested with the

119 Cf. Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332; Prosser v. Callis, 117 Ind. 105, 19 N. E. 735; Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574.

120 Imputing crime: Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332; Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S. W. 332; Ramsey v. Cheek, 109 N. C. 270, 13 S. E. 775; Cochran v. Melendy, 59 Wis. 207, 18 N. W. 24. Disease: Simpson v. Press Pub. Co., 33 Misc. Rep. 228, 67 N. Y. Supp. 401 (leprosy); Villers v. Monsley, 2 Wils. K. B. 403 (leprosy; semble). Misconduct in or lack of capacity for profession, business, or office: Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Bornmann v. Star Co., 174 N. Y. 212, 66 N. E. 723; Mattice v. Wilcox, 147 N. Y. 624, 42 N. E. 270; O'Brien v. Times Publishing Co., 21 R. I. 256, 43 Atl. 101.

121 Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N. E. 692, 13 L. R. A. 864; Prosser v. Callis, 117 Ind. 105, 19 N. E. 735; Hand v. Winton, 38 N. J. Law, 122; Cady v. Brooklyn Union Pub. Co., 23 Misc. Rep. 409, 51 N. Y. Supp. 198; Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. Supp. 650; Simmons v. Morse, 51 N. C. 6; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574; BUCKSTAFF v. VIALL, 84 Wis. 129, 54 N. W. 111, Chapin Cas. Torts, 164. Pfitzinger v. Dubs, 64 Fed. 696, 12 C. C. A. 399.

122 Williams v. Godkin, 5 Daly (N. Y.) 499, 502.

dignity of print, is capable by reason of its permanent character and wide dissemination of inflicting serious injury," 123 and, although it has at times been questioned whether this distinction rests upon a sound basis,124 it is nevertheless fully established. Hence epithets or expressions which, if orally uttered, would require averment and proof of damage, may constitute libel, though such averment and proof be lacking, e. g., an "itchy old toad," 125 a "villain," 120 a "rascal," 127 a "liar," 128 a "hoary-headed filcher," 129 a "cowardly snail," 180 a "swindler," 181 or a

123 Tillson v. Robbins, 68 Me. 295, 298, 28 Am. Rep. 50, per Barrows, J. Cf. Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 520, 5 South. 332.

124 "So it has been argued that writing shows more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is therefore actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter. It is true that a newspaper may be very generally read, but that is all casual." Thorley v. Lord Kerry, 4 Taunt. 355, 365, per Mansfield, C. J. Cf. Herrick v. Tribune Co., 108 Ill. App. 244; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574.

125 Villers v. Monsley, 2 Wils. K. B. 403.

126 Bell v. Stone, 1 Bos. & Pul. 331. Cf. Browne v. Hawkins, Y. B. 17 Edw. IV, fol. 3, pl. 2.

127 See Williams v. Karnes, 4 Humph. (Tenn.) 9. But "villain," "rascal," and "cheater" may be slander per se, if spoken with reference to plaintiff in his trade. Nelson v. Borchenius, 52 Ill. 236.

128 Lindley v. Horton, 27 Conn. 58; Hake v. Brames, 95 Ind. 161; Rider v. Rulison, 74 Hun, 239, 26 N. Y. Supp. 234; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574. Aliter, when oral. Kimmis v. Stiles, 44 Vt. 351.

129 Crocker v. Hadley, 102 Ind. 416, 1 N. E. 734.

130 Price v. Whitely, 50 Mo. 439. Here plaintiff was also referred to as an "imp of the devil," but the court says that this phrase "in itself has no specific meaning, but is a mere term of reproach,” and "receives point and takes chiefly its libelous character from the allegation that as imp of the devil he sat in the mayor's seat." Sed

quære.

131 Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; J'Anson v. Stuart, 1 T. R. 1357; Zierenberg v. Labouchere, [1893] 2 Q. B. 183. But not slander per se. Stevenson v. Hayden, 2 Mass. 406; Kuhne

charge that one not a clergyman was a hypocrite and used the cloak of religion for unworthy purposes.132 Imputations of unchastity, it is submitted, furnish another illustration; 133 also charges of misconduct in office, published after the official term has expired.184 Other illustrations are given in the note.185

DEFAMATION WITH SPECIAL DAMAGE

72. If the matter be defamatory, and cannot be placed in any of the classes already described, there must be averment and proof of special damage.136

v. Ahlers, 45 Misc. Rep. 454, 92 N. Y. Supp. 41; Chase v. Whitlock, 3 Hill (N. Y.) 139; Savile v. Jardine, 2 H. Bl. 531. Unless spoken of one in his office or calling. Forrest v. Hanson, 1 Cranch, C. C. 63, Fed. Cas. No. 4,943. See Neal v. Lewis, 2 Bay (S. C.) 204, 1 Am. Dec. 640.

132 Thorley v. Lord Kerry, 4 Taunt. 355.

133 Not slander per se at common law. See supra, p. 313. But libelous, though damage not shown. More v. Bennett, 48 N. Y. 472. See Cady v. Brooklyn Union Pub. Co., 23 Misc. Rep. 409, 411, 51 N. Y. Supp. 198.

134 Russell v. Anthony, 21 Kan. 450, 30 Am. Rep. 436; Cramer v. Riggs, 17 Wend. (N. Y.) 209.

135 Herrick v. Tribune Co., 108 Ill. App. 244; Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730. A charge that a white man is a negro is libelous. Upton v. Times-Democrat Pub. Co., 104 La. 141, 28 South. 970; Flood v. News & Courier Co., 71 S. C. 112, 50 S. E. 637, 4 Ann. Cas. 685. But not slander per se, McDowell v. Bowles, 53 N. C. 184; Williams v. Riddle, 145 Ky. 459, 140 S. W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151. So of imputations of insanity, Seip v. Deshler, 170 Pa. 334, 32 Atl. 1032 (written); JOANNES v. BURT, 6 Allen (88 Mass.) 236, 83 Am. Dec. 625, Chapin Cas. Torts, 160 (oral); and illegitimacy, Shelby v. Sun Printing & Publishing Ass'n, 38 Hun (N. Y.) 474, affirmed 109 N. Y. 611, 15 N. E. 895 (written); Hoar v. Ward, 47 Vt. 657 (oral). It has been held, however, that spoken words imputing illegitimacy were actionable per se, as tending to produce disherison, and that it was unnecessary to establish that the party had in fact been disinherited. Humphreys v. Stanfield, Cro. Car. 469.

136 Studdard v. Trucks, 31 Ark. 726; Wilson v. Cottman, 65 Md. 190, 3 Atl. 890; Doyle v. Kirby, 184 Mass. 409, 68 N. E. 843; Barnes v. Trundy, 31 Me. 321; Flatow v. Von Bremsen (City Ct.) 11 N. Y.

The special damage must have been of a pecuniary nature, since, as has been seen,137 mere mental pain or suffering will not suffice. Furthermore, it will not be enough that damage has in fact been caused, unless it appears to be the forseeable consequence of the publication.138 But suppose the matter is not defamatory in its nature? It is said that a charge of having done that which one may lawfully do, e. g., successfully invoked the statute of limitations when called upon to pay a just debt,139 is actionable, when special damage is established, though otherwise it is not.140 True, in the cases just cited, the acts charged may be deemed morally censurable, but there seems no reason why recovery should be denied where even this element is lacking, provided defendant knew or should have known that his lie would result in damage to plaintiff, and such damage did in fact follow, though the action must necessarily be on the case, and not for slander or libel.141 Suppose that, during the present European war, I should falsely tell an employer, whose sympathies were strongly with the Germans, that one of his employés had contributed to a fund for the

Supp. 680; Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308; Walker v. Tribune Co. (C. C.) 29 Fed. 827.

187 See supra, p. 83.

138 Georgia v. Kepford, 45 Iowa, 48; Field v. Colson, 93 Ky. 347, 20 S. W. 264; Baldwin v. Walser, 41 Mo. App. 243 (libel); Anonymous, 60 N. Y. 262, 19 Am. Rep. 174; Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 579; Miller v. David, L. R. 9 C. P. 118, 30 L. T.

N. S. 58; Vicars v. Wilcocks, 8 East, 1.

139 Hollenbeck v. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Bennett v. Williamson, 6 N. Y. Super. Ct. 60. 140 Donaghue v. Gaffy, 53 Conn. 43, 2 Atl. 397; Watters & Son v. Retail Clerks' Union No. 479, 120 Ga. 424, 47 S. E. 911; Homer v. Engelhardt, 117 Mass. 539; Foot v. Pitt, 83 App. Div. 76, 82 N. Y. Supp. 464; Zinserling v. Journal Co., 26 Misc. Rep. 591, 57 N. Y. Supp. 905; Goldberger v. Philadelphia Grocer Pub. Co. (C. C.) 42 Fed. 42.

141 Cf. Hollenbeck v. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Lombard v. Lennox, 155 Mass. 70, 28 N. E. 1125, 31 Am. St. Rep. 528; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74, 8 L. R. A. 524, 21 Am. St. Rep. 474; Reid v. Providence Journal Co., 20 R. I. 120, 37 Atl. 637; Reynolds v. Bentley, 1 McMul. (S. C.) 16, 36 Am. Dec. 251. Contra, Knight v. Blackford, 3 Mackey (14 D. C.) 177, 51 Am. Rep. 772.

relief of distressed Belgians, and I knew at the time that dismissal would follow. Here a praiseworthy act is charged, and yet would not the dismissed employé have a cause of action against me? 142

148

It has already been seen that it is not essential that the hearer or reader should think that the imputation is false.1 This is true, likewise, when special damage is caused by the act of a third party, as where an employer, though not believing the charge, nevertheless dismissed the employé. A contrary rule would require too fine a speculation on motives, and "would often put it in the power of an unwilling witness to determine a case against the plaintiff." Besides, "it may often happen that a person may not believe what is told, and yet not have courage to keep the individual who labors under the imputation."144

Where it is necessary to allege special damage, the items of the loss or injury must be distinctly stated. A mere ad damnum clause is not the equivalent of such an averment.145

142 But in Kelly v. Partington, 5 Barn. & Adol. 646, Littledale, J., asked (page 648): "Suppose a man had a relation of a penurious disposition, and a third person, knowing that it would injure him in the opinion of that relation, tells the latter a generous act which the first has done, by which he induces the relation not to leave him money, would that be actionable?" To this the Solicitor General (Sir John Campbell) answered: "If the words were spoken falsely with intent to injure, they would be actionable." Evidently the court did not agree. Recovery was here denied where defendant had said that plaintiff, a shop woman, "secreted 1s. 6d. under the till," and added, "These are not times to be robbed," though it was alleged that by reason thereof one Stenning had refused to take plaintiff into his service. Denman, C. J., observed: "The words do not of necessity import anything injurious to the plaintiff's character, and we think that the judgment must be arrested, unless there is something on the face of the declaration from which the court can clearly see that the slanderous matter is injurious to the plaintiff." Cf. Terwilliger v. Wands, 17 N. Y. 54, 61, 72 Am. Dec. 420.

143 See supra, p. 298.

144 Knight v. Gibbs, 1 Adol. & El. 43, per Lord Lenman, C. J. Contra, Anonymous, 60 N. Y. 262, 19 Am. Rep. 174 (semble).

145 Watters & Son v. Retail Clerks' Union, No. 479, 120 Ga. 424, 47 S. E. 911; Smid v. Bernard, 31 Misc. Rep. 35, 63 N. Y. Supp. 278; Hallock v. Miller, 2 Barb. (N. Y.) 630; Railroad v. Delaney, 102