(b) Must be proved in all other cases to have produced to the plaintiff some special injury, which must be, inter alia, (1) Sufficient in quantity; (2) Pecuniary or temporal; and (3) Proximate. Damages Presumed. Matters which are slanderous per se are also libelous per se. Hence, when the cases of matter libelous per se, but not slanderous per se, have been duly regarded, consideration of matter defamatory per se is completed. Detailed discussion of the four classes of words in which the law presumes damage in slander is therefore postponed until the subject of the defamatory words comes up in logical order. Special Injury-Nominal Damages. The law will apply the maxim, "De minimis non curat lex," to the special injury or damage which a person must allege and prove to entitle him to recover for words not slanderous per se.79 Same-Pecuniary Loss. Such damage must be pecuniary or temporal, not merely sentimental. They are allowed "whenever a person is prevented by slander from recovering that which would otherwise be conferred upon him gratuitously," as the loss of customers by a tradesman.8° But generally loss of consortium vicinorum gives no ground of action.81 So, if words prevent one from being invited to a friend's house to dinner, they are actionable; 82 but not if they prevent one's election to a club, and thus prevent dining friends. Chance of election, unlike actual membership, is not of temporal value.83 79 Ante, c. 5, "Remedies." 80 Pol. Torts, 300-303; Steele v. Southwick, 9 Johns. 214, 1 Am. Lead. Cas. 106; 6 Am. Law Rev. 593; 1 Starkie, Sland. & L. 194-202; Bassil v. Elmore, 65 Barb. 627, 48 N. Y. 561; Pettibone v. Simpson, 66 Barb. 492. And see Beach v. Ranney, 2 Hill, 309; Roberts v. Roberts, 5 Best & S. 384, 33 Law J. Q. B. 249; Anonymous, 60 N. Y. 262 (charge of self pollution); Woodbury v. Thompson, 3 N. H. 194. 81 Roberts v. Roberts, 5 Best & S. 384, 33 Law J. Q. B. 249. 82 Davies v. Salomon, L. R. 7 Q. B. 112; Lynch v. Knight, 9 H. L. Cas. 599. 83 Chamberlain v. Boyd, 11 Q. B. Div. 407-416. Mere words of common abuse are not actionable without proof of special pecuniary damages, and the law has been very generous to a slanderer in its definition of common abuse. Thus, to charge prostitution, or to say of a married woman that she was "a liar and infamous wretch, and that she had all but been seduced by a notorious libertine," is not actionable without averring and proving loss of temporal advantage.84 So, to say of a woman that the defendant "looked over the transom light and saw Mrs. P. (the plaintiff) in bed with Capt. D." was not actionable, without proving special damages; and to allege that by reason of such false statement the plaintiff was damaged in her name and fame is not sufficient to show special damages.85 If, however, reflection on chastity result in preventing a person's marriage, damages may be recovered, but even then only when there has been special pleading. The English "Slander of Woman Act" has made words imputing unchastity or adultery slanderous per se. 86 It has been held that a charge of adultery by a clergyman is not scandalous per se. And a man may with impunity, unless such person thereby suffers special injury, call another a "black-leg," a "gambler," 88 a "rogue," 89 a "welcher," 90 a "low fellow." 91 Same-Proximate or Remote Damages. As in all cases of tort, damages to be recoverable must be proximate not remote. But while the right to reputation was generally regarded as absolute, the courts did not extend the liberality of the rule as to consequences applied in trespass to slander. On the contrary, in the celebrated case of Vicars v. Wilcox,92 where a person spoke disparaging words of another, by reason of which the 84 Lynch v. Knight, 9 H. L. Cas. 431-448; Weaver v. Ritter, 14 Pa. Co. Ct. R. 486. 85 Pollard v. Lyon, 91 U. S. 225. 86 Davis v. Gardiner, 4 Coke, 16b, pl. 11; Reston v. Pomfreict, Cro. Eliz. 639; 3 Bl. Comm. 124. 87 Parrat v. Carpenter, Cro. Eliz. 502 (charge of adultery by a clergyman not slanderous); Barnett v. Allen, 27 Law T. 491. 88 Forbes v. King, 1 Dowl. P. C. 672. 69 Hopwood v. Thorn, 8 C. B. 293-313. 90 Blackman v. Bryant, 27 Law T. (N. S.) 491. 91 Lumby v. Allday, 1 Cro. Jac. 301. 92 Vicars v. Wilcocks, 8 East, 1. 94 latter was dismissed from service, the damages were held to be remote. This holding is manifestly unsound.93 True to their love for the "reasonably prudent man," the English courts incline to separate a natural and probable, from a remote, consequence, by what such a person would have foreseen as the result of a given conduct. Thus, in Lynch v. Knight, in consequence of a charge of levity (but not incontinence), a husband turned his wife out of doors. It was held that no action lay, on the ground that the damage was not the natural result of the slander, but arose from the rashness or idiosyncrasy of her husband. "The act constituting the special damage must be such as might be expected from a reasonable man who believed the truth of the words according to the intention of the slanderer." 95 A wrongdoer is not bound to anticipate the general probability of wrongdoing by a third person. Therefore he is not bound to foresee the repetition of a libel, any more than a particular act by this or that individual.9 But one who gives defamatory matter to a reporter is responsible for its publication in a newspaper."7 "An action may sometimes be maintained for words written for which an action could not be maintained if they were merely spoken." 98 Libel is regarded in the law as an injury of a "greater and more aggravating nature than slander." The reason for this distinction may, perhaps, most truthfully be found in the histori 93 Lynch v. Knight, 9 H. L. Cas. 577. But see Wallace v. Rodgers, 156 Pa. St. 395, 27 Atl. 163. 949 H. L. Cas. 577. 95 Pig. Torts, 309. 96 Holmes, J., in Burt v. Advertiser Newspaper Co., 154 Mass. 238-247, 28 N. E. 1, and cases cited; McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N. W. 671; Hardy v. Williamson, S6 Gà. 551, 12 S. E. 874; Halley v. Gregg, 82 Iowa, 622, 48 N. W. 974. 97 State v. Osborn [1895] 54 Kan. 473, 38 Pac. 572; Clay v. People, 86 Ill. 147; Clifford v. Cochrane, 10 Ill. App. 570-577; Wilson v. Noonan, 27 Wis. 598; Miller v. Butler, 6 Cush. 71; Queen v. Cooper, 8 Q. B. 533; Adams v. Kelly, 1 Ryan & M. 157; Parkes v. Prescott, L. R. 4 Exch. 169; Field v. Colson (Ky.) 20 S. W. 264; ante, p. 383, c. 5, "Special Damages." 98 White v. Nicholls, 3 How. 266; Thorley v. Lord Kerry, 4 Taunt. 355, citing Com. Dig. "Libel," A, 3, referring to cases in Fitzg. 121-253; Crop v. Tilney, 3 Salk. 226, per Holt, C. J. cal development of the law rather than in the nature of the offense."" It is commonly urged that the difference is justified by the method of publication involved. In libel, the fact that production is one thing and publication another shows premeditation and design, and always, to some extent, affords opportunity for examination into the truth of the charge, so that the inference of malice is more certain. Again, the means of publishing libel tends to keep the charge "fresh in imagination, while with slander the words might not dwell in the memory." Written defamation is likely to have a more extended circulation than spoken words. And, finally, the tendency of libel, because of these considerations, to cause a breach of peace is more direct than that of slander.100 The soundness of the reasoning has been often and vigorously questioned. Lord Mansfield, although he refused to repudiate the distinction because of authority, said: "It is curious that they [the judge and counsel who sustained the distinction] have adverted to the question whether it tends to produce a breach of peace; but that is wholly irrelevant, and no ground for recovering damages. So it has been argued that writing shows deliberate malignity; but the same answer suffices, that the action is not upon the ground of malignity but for the damage sustained. So it is argued that a written scandal is more generally diffused than words spoken, but an assertion made in a public place may be much more extensively diffused than a few printed papers dispensed, or a private letter. It is true that a newspaper may be generally read, but that is all casual." 101 * 99 Bigelow, Lead. Cas. 99. And see article in 10 Law Quart. Rev. 158, by Mr. Joseph R. Fisher. 100 Pig. Torts, 313; Clement v. Chivis, 9 Barn. & C. 172; McClurg v. Ross, 5 Bin. (Pa.) 218, 219. 101 Thorley v. Lord Kerry, 4 Taunt. 355, at page 364. And see Deford v. Miller, 3 Pa. St. 103; Colby v. Reynolds, 6 Vt. 489; Archbishop v. Robeson, 5 Bing. 17-21. SAME-PRESUMPTION IN ACTION FOR LIBEL. 172. The rule as to damages in libel is that damages(a) Will be presumed only when the matter complained of as libelous is in its nature ordinarily calculated to (1) Injure the complainant in his calling; (2) Injure complainant in his social relations; or, or contempt. (b) Must be proved in all other cases to have produced special loss or injury to the plaintiff conforming to legal standards. This is the general rule of damages applied to violence of right of reputation. Certain words are defamatory per se. What such words are is determined, not by the use of artificial or historical tests, the "four-class test," as in slander, but by a reasonable and natural standard, viz. the inevitable tendency of certain classes of words to do what a man of sound common sense would call damage. Other words, which are not necessarily harmful, may become so under the circumstances of a particular case. Then the burden is on the complainant to show what loss to him was consequent on their publication. Damages Presumed. Whenever words are libelous per se, no proof of actual injury is necessary to entitle the plaintiff to recover something. The law presumes that he had suffered some injury by reason of the publication, and the amount of that injury or damage is a question for the jury.1 Whenever words are slanderous per se, they are also libelous per se.103 102 102 Henkle v. Schaub, 94 Mich. 542, 54 N. W. 293; Smith v. Sun Printing & Pub. Ass'n, 5 C. C. A. 91, 55 Fed. 240; Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Newell, Defam. 181. 103 Bergmann v. Jones, 94 N. Y. 51; 1 Suth. Dam. p. 12; Miles v. Harrington, 8 Kan. 425, 430; Yeates v. Reed, 4 Blackf. 463; Swift v. Dickerman, 31 Conn. 285; Mitchell v. Milholland, 106 Ill. 175; Stewart v. Minnesota Tribune |