repetition of the subject-matter of a writing; also, there may be a repetition of oral language(speech), but there cannot be a republication of oral language." 5 Therefore, if after a recovery and satisfaction for one slanderous utterance or libelous publication, the same defamatory matter is uttered or published again by the wrongdoer, this is a new injury, and another cause of action, and there may be another recovery and satisfaction from him.55 But a repetition of the same article, as an issue of the newspaper subsequent to the commencement of the action, operates to show malice and to aggravate damages.56 SAME-APPLICATION TO THE PLAINTIFF. 169. To recover for publication of defamatory words, the plaintiff must show (a) Their personal application to him;" and (b) In a disparaging sense. Personal Application. A general charge is not sufficient. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him, unless there is something to point to the particular individual." 58 However, a general charge may, by evidence that a certain person was specifically referred to, be made sufficient, unless by its own nature it 59 54 Townsh. Sland. & L. p. 92, § 112. And see Woods v. Pangburn, 75 N. Y. 495; Id., 14 Hun, 540; Tillotson v. Cheetham, 3 Johns. 56; Thomas v. Rumsey, 6 Johns. 26; Rockwell v. Brown, 36 N. Y. 207. With all due allowance for mitigating circumstances, damages will be awarded for injury to character by slander, aggravated by repetition. Rev. Civ. Code, par. 3, arts. 1934-2315. 55 Wood v. Pangburn, 75 N. Y. 495. 56 Welch v. Tribune Pub. Co., 83 Mich. 661, 47 N. W. 562; Ellington v. Taylor, 46 La. Ann. 371, 15 South. 499; post, p. 520, "Actual Malice"; note 220. 57 McCallum v. Lambie, 145 Mass. 234, 13 N. E. 899, and cases collected; Le Fanu v. Malcomson, 1 H. L. Cas. 636. 58 Willis, J., in Eastwood v. Holmes, 1 Fost. & F. 347-349. But cf. Lord Campbell, in Le Fanu v. Malcomson, 1 H. L. Cas. 636-668; Dexter v. Harrison, 146 III. 169, 34 N. E. 46. 59 Thus "dagos" may be applied to plaintiff. Craig v. Pueblo Press Pub. is too uncertain.60 But, on the other hand, such person need not be described by his own name. 61 He makes out his case by showing that he is, and was understood to be, the person referred to.62 He must so satisfy the jury. A court may determine this matter, however, together with the defamatory nature of the words. Thus, 63 it has been held libelous as a matter of law to nickname Senator Buckstaff "Senator Becksniff" (by reason of similarity to a Pecksniff), the "legislative God," and the like.** 65 The application must be to the plaintiff's person, not to his property. To be libelous against a particular person, it must concern him, not a third person, even his wife." So far as pleading is con Co. (Colo. App.) 37 Pac. 945. And see Boehmer v. Detroit Free Press Co., 94 Mich. 7, 53 N. W. 822. 60 As to say, "One of you three is perjured." Sir John Bourn's Case, cited Cro. Eliz. 497. 61 James v. Rutlech (1599) 4 Coke, 17b; Dressel v. Shippman (Minn.) 58 N. W. 684. 62 Roach v. Garvan (1742) 2 Atk. 469; O'Brien v. Clement (1846) 15 Mees. & W. 434, 435; Dexter v. Harrison, 146 Ill. 169, 34 N. E. 46. Indeed, it may be described by the name of some one else, Levi v. Milne (1827) 4 Bing. 195; or by a fictitious name, King v. Clerk (1729) 1 Barnard. 304; or by asterisks, Bourke v. Warren (1826) 2 Car. & P. 307. But see Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462. 63 Lawrence v. Newberry (1891) 64 Law T. (N. S.) 797; Smart v. Blanchard, 42 N. H. 137; De Armond v. Armstrong, 37 Ind. 35; Goodrich v. Davis, 11 Metc. (Mass.) 473; Boehmer v. Press Co., 94 Mich. 7, 53 N. W. 822; Ayres v. Toulmin, 74 Mich. 44, 41 N. W. 855. 64 Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111. The actionable quality of the words is one thing, the application to plaintiff another. Smith v. Coe, 22 Minn. 276; Petsch v. Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034; Carlson v. Minnesota Tribune Co., 47 Minn. 337, 50 N. W. 229, construing Gen. St. Min. 1878, c. 66, § 115 (Rev. St. Minn. 1894, § 5257). In Stewart v. Wilson, 23 Minn. 449, the publication complained of was as follows: "As Mr. Wilson has sworn to this answer, here is a good chance for the 'deacon' to bring a complaint against him for perjury. We have not the slightest doubt but there is a great deal of perjury in these numerous cases, and it ought to be shown up. We have no idea, however, that Mr. Wilson is tainted with it in the slightest." Held that, in the absence of averment connecting plaintiff with the deacon, there was no cause of action. 65 Ante, p. 473. 66 The mere fact that a publication charges plaintiff's wife, since deceased, with having procured a miscarriage upon her person, is not libelous against cerned, it is now commonly sufficient to allege generally that the defamatory matter was published concerning the plaintiff." Disparaging Sense. A word naturally defamatory may be so used that it is neither intended nor understood to have its literal and damaging meaning, but to be harmless.68 Thus, if one should say, "Thou art a murderer," the words would not be actionable, if he could make it appear that the person with whom he was conversing concerning unlawful hunting had admitted killing several hares, and that by the expression used he meant a "murderer" of the hares so killed.69 So one may, without responsibility in damages, denounce another as a "thief," and mean and be understood to mean no more than that the latter had been guilty of mismanagement of corporation affairs." DAMAGE AS THE GIST OF LIBEL AND SLANDER. 170. Damage sometimes is of the gist of libel and slander, and sometimes is not. Mr. Townshend has demonstrated that history is silent as to the introduction of the action for defamation. Accordingly, he applies hypothesis as a means of investigation as to the manner in which the law protects reputation, and concludes that pecuniary loss is the gist of the action. He regards the rule of law that certain language is, per se, and without other evidence, conclusive proof of pecuniary loss, as only a rule of evidence, while the rule of right re plaintiff. Wellman v. Sun Print. and Pub. Co., 66 Hun, 331, 21 N. Y. Supp. 577. A married woman, though living with her husband, may maintain action for slander in her own name, and without joining him with her. Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822; Harper v. Pinkston, 112 N. C. 293, 17 S. E. 161. 67 Ratcliffe v. Evans [1892] 2 Q. B. 524; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752; Nelson v. Wallace, 48 Mo. App. 193. 68 Starkie, Sland. & L. 98, 99, et seq.; Van Rensselaer v. Dole, 1 Johns. Cas. (N. Y.) 279. And see valuable note to second edition. 69 Lord Cromwell's Case, 4 Coke, 13. 70 Kidd v. Ward (Iowa) 59 N. W. 279; Delaney v. Kaetel, S1 Wis. 353, 51 N. W. 559; Wagner v. Saline Co. Progress Printing Co., 45 Mo. App. 6. And see Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752. But see Jacksonville Journal Co. v. Beymer, 42 Ill. App. 443. mains intact, that a pecuniary loss must be shown to entitle to a remedy."1 To apply this distinction between a rule of evidence and a rule of right to the entire law of torts would, however, be revolutionary. There is no reason why the general law should be further filled with exceptions. The distinction also ignores the important proposition that where damages are presumed by the law from the invasion of a right (whether called natural, simple, absolute, or by other name), no inquiry is allowed into the character of the actual harm suffered. Then, there is no requirement that such actual harm be sufficient in quantity, temporal in character, or proximate in sequence, so far as mere right to recover (but not extent of recovery) is concerned. This distinction, accordingly, would seem to be untrue or misleading. The fact is that here the law is eminently artificial. It has held that certain classes of words in slander and a different class of words in libel are actionable per se; that is, invade a simple (or absolute) right of reputation. Upon proof of publication of such words, or absence of any defense, the plaintiff must recover at least nominal damages. The law has further held that where words are not within these classes (i. e. slanderous or libelous per se), then they are actionable only on proof of special injury to the complainant. Upon proof of publication of words not per se defamatory, even in the absence of any defense, the plaintiff cannot recover, unless he shows that he suffered harm which conforms to the standard fixed by the general rules. Louisiana Rule. Louisiana, freed from many of the fetters of the common law, and deriving its inspiration largely from the civil law, well illustrates the natural rule as to defamation of persons. It is provided by its Code 72 that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "The courts of that state are not bound," said Fenner, J., in Spotorno v. Fourichon,73 "by the technical distinctions of the common law as to words actionable per se and not actionable per se, and allowing for 71 Townsh. Sland. & L. p. 44, § 56. the latter only actual pecuniary damages specially proved." 74 If the charges are false, injurious, and made maliciously or mala animo, they combine all the elements essential to support the action.75 Both damage and injury and the malice may be inferred from the nature and falsity of the words, and from the circumstances under which they were uttered, without the necessity of special proof. It was therefore held that, under the social habits and customs and prejudices prevailing in that state, charging a white man with being a negro was actionable slander." The consideration of this confused subject will follow this order: (1) The extent to which damage is of the gist of a cause of action in slander, and the character of such damage; (2) the extent to which damage is of the gist of a cause of action in libel; (3) cases in which damages will be presumed in libel and not in slander. SAME-PRESUMPTION IN ACTION FOR SLANDER. 171. The rule in actions for slander is that damages(a) Will be presumed by law whenever the alleged slanderous matter (1) Imports a charge of punishable crime; (2) Imputes a contagious or offensive disease; (3) Is calculated to injure the plaintiff in his calling; or (4) Tends to the disherison of the plaintiff.78 74 Miller v. Holsteine, 16 La. 627; Feray v. Foote, 12 La. Ann. 894. 75 Note confused use of "injurious." 76 Miller v. Holsteine, supra; Daily v. Van Benthuysen, 3 La. Ann. 69; Tresca v. Maddox, 11 La. Ann. 206; Cass v. New Orleans Times, 27 La. Ann. 214. 77 Toye v. McMahon, 21 La. Ann. 308; Warner v. Clark, 45 La. Ann. 863, 13 South. 203 (commenting, inter alia, on Dunsee v. Norden, 36 La. Ann. 79). 78 Onslow v. Horne, 3 Wils. 177-185 (De Grey, C. J.) followed in Alexander v. Jenkins [1892] 1 Q. B. 797; Starkie, Sland. & L. 105; Pig. Torts, 305; Bigelow, Lead. Cas. 99; Fras. Torts, 86. There is another exception in England, by local custom, as imputing unchastity to a woman in London or Bristol. Shearw. Torts, 30. |