his act; and for which, therefore, his employers shall be held liable, and not he. Whereas in every case of the republication of a slander, the publisher acts consciously and voluntarily; the repetition is his own act. Therefore, if I am in any way concerned in the making or publishing of a libel, I am liable for all the damage that ensues to the plaintiff from its publication. But if I slander A., I am only liable for such damages as result directly from that one utterance by my own lips. If B. hears me and chooses to repeat the tale, that is B.'s own act; and B. alone is answerable, should damage to A. ensue. In an action against me such special damage would be too remote. For each publication of a slander is a distinct and separate tort, and every person repeating it becomes an independent slanderer, and he alone is answerable for the consequences of his own unlawful act. Thus, by the law of England, as it at present stands, the person who invents a lie and maliciously sets it in circulation may sometimes escape punishment altogether, while a person who is merely injudicious may be liable to an action through repeating a story which he believed to be the truth, as he heard it told frequently in good society. For if I originate a slander against you of such a nature that the words are not actionable per se, the utterance of them is no ground of action, unless special damage follows. If I myself tell the story to your employer, who thereupon dismisses you, you have an action against me: but if I only tell it to your friends and relations and no pecuniary damage ensues from my own communication of it to any one, then no action lies against me; although the story is sure to get round to your master sooner or later. The unfortunate man whose lips actually utter the slander to your master, is the only person that can be made defendant; for it is his publication alone which is actionable as causing special damage. The law is the same in America. (Gough v. Goldsmith, 44 Wis. 262; 28 Amer. R. 579; Shurtleff v. Parker, 130 Mass. 293; 39 Amer. R. 454.) But this apparent hardship only arises where the words are not actionable without proof of special damage. Where the words are actionable per se, the jury find the damages generally, and will judge from the circumstances which of the defendants is most to blame. There are two apparent exceptions to this rule: I. Where by communicating a slander to A., the defendant puts A. under a moral obligation to repeat it to some other person immediately concerned; here, if the defendant knew the relation in which A. stood to this other person, he will be taken to have contemplated this result when he spoke to A. In fact, here A.'s repetition is the natural and necessary consequence of the defendant's communication to A. (See the judgment of Lopes, L.J., in Speight v. Gosnay, 60 L. J. Q. B. 231; 55 J. P. 501.) II. *Where there is evidence that the defendant, though he spoke only to A., intended and desired that A. should repeat his words, or expressly requested him to do so; here the defendant is liable for all the consequences of A.'s repetition of the slander; for A. thus becomes the agent of the defendant.* (As to Principal and Agent, see Law of Persons, c. XXI., post, p. 529.) Illustrations. Weeks was speaking to Bryce of the plaintiff, and said, "He is a rogue and a swindler; I know enough about him to hang him." Bryce repeated this to Bryer as Weeks' statement. Bryer consequently refused to trust the plaintiff, who thereupon sued Weeks. Held, that the judge was right in nonsuiting the plaintiff for the words were not actionable per se; and the damage was too remote. Wurd v. Weeks, (1830) 7 Bing. 211; 4 M. & P. 796. The defendant's wife charged Mrs. Parkins with adultery. She indignantly told her husband, her natural protector; he was unreasonable enough to insist upon a separation in consequence. Held, that for the separation the defendant was not liable. Parkins et ux. v. Scott et ux., (1862) 1 H. & C. 153; 31 L. J. Ex. 331; 8 Jur. N. S. 593; 10 W. R. 562; 6 L. T. 394. See Dixon v. Smith, (1860) 5 H. & N. 450; 29 L. J. Ex. 125. H. told Mr. Watkins that the plaintiff, his wife's dressmaker, was a woman of immoral character; Mr. Watkins naturally informed his wife of this charge, and she ceased to employ the plaintiff. Held, that the plaintiff's loss of Mrs. Watkins' custom was the natural and necessary consequence of the defendant's communication to Mr. Watkins. Derry v. Handley, (1867) 16 L. T. 263. See Gillett v. Bullivant, (1846) 7 L. T. (Old S.) 490. This passage was cited with approval by the Court in Whitney and others v. Moignard, 24 Q. B. D. at p. 631. The defendant uttered a slander consisting of a false imputation upon the chastity of the plaintiff, an unmarried woman, in the presence of her mother. The mother repeated it to the plaintiff, who repeated it to the man to whom she was engaged to be married, and he broke off the engagement. There was no evidence that the defendant authorised or intended the repetition of the slander, or that he knew of the plaintiff's engagement. Held, that an action of slander could not be maintained against him. (N.B. This was prior to the Slander of Women Act, 1891.) Speight v. Gosnay, (1891) 60 L. J. Q. B. 231; 55 J. P. 501; 7 Times Ecklin v. Little, (1890) 6 Times L. R. 366. It has sometimes been held, on the principle of Volenti non fit injuria, that if the only publication proved at the trial be one brought about by the plaintiff's own contrivance, the action must fail. Thus, in King v. Waring et ux., 5 Esp. 15, Lord Alvanley decided that if a servant, knowing the character which his master will give him, procures a letter to be written, not with a fair view of inquiring the character, but to procure an answer upon which to ground an action for a libel, no such action can be maintained. So in Smith v. Wood, 3 Camp. 323, where the plaintiff, hearing that defendant had in his possession a copy of a libellous caricature of the plaintiff, sent an agent who asked to see the picture, and the defendant showed it him at his request, Lord Ellenborough ruled that this was no sufficient evidence of publication, and nonsuited the plaintiff. But these cases, so far as the question of publication merely is concerned, must be taken to be overruled by the Duke of Brunswick v. Harmer, 14 Q. B. 185; 19 L. J. Q. B. 20; 14 Jur. 110; 3 C. & K. 10. Whether or no the plaintiff's conduct in himself provoking or inviting the publication on which he afterwards bases his action may amount to a ground of privilege as excusing the publication made, is a different question, which will be discussed post, pp. 277-281. And indeed in many of the older cases the Judges say, "there is no sufficient publication to support the action," when they mean in modern parlance that the publication was privileged by reason of the occasion. (See the judgment of Best, J., in Fairman v. Ires, 5 B. & Ald. 646; 1 D. & R. 252; 1 Chit. 85, and Robinson v. May, 2 Smith, 3.) And note that a publication induced by the prosecutor is sufficient in a criminal case. (R. v. Carlile, 1 Cox, C. C. 229.) CHAPTER VII. JUSTIFICATION. THE truth of any defamatory words is, if pleaded, a complete defence to any action of libel or slander (though alone it is not a defence in a criminal trial). The onus, however, of proving that the words are true, lies on the defendant. The falsehood of all defamatory words is presumed in the plaintiff's favour, and he need give no evidence to show they are false; but the defendant can rebut this presumption by giving evidence in support of his plea. If the jury are satisfied that the words are true in substance and in fact, they must find for the defendant, though they feel sure that he spoke the words spitefully and maliciously. On the other hand, if the words are false, and there be no other defence, the jury must find for the plaintiff, although they are satisfied that the defendant bona fide and reasonably believed the words to be true at the time he uttered them. But the whole libel must be proved true; it will be no defence to the action to prove that a part merely is true. The defence must be pleaded to the words set out in the Statement of Claim, and not to some other words of the defendant's own. (Rassam v. Budge, (1893) 1 Q. B. 571; 62 L. J. Q. B. 312.) The justification must be as broad as the charge, and must justify the precise charge. If any material part be not proved true, the plaintiff is entitled to damages in respect of such part. (Weaver v. Lloyd, 1 C. & P. 295; 2 B. & C. 678; Ingram v. Lawson, 5 Bing. N. C. 66; 6 Scott, 775; 6 Bing. N. C. 212; 8 Scott, 471.) Thus, where a libellous paragraph in a newspaper is introduced by a libellous heading, it is not enough to prove the truth of the facts stated in the paragraph; the defendant must also prove the truth of the heading. (Mountney v. Watton, 2 B. & Ad. 673; Chalmers v. Shackell, 6 C. & P. 475.) But where the gist of the libel consists of one specific charge which is proved to be true, the defendant need not justify every expression which he has used in commenting on the plaintiff's conduct. Nor, if the substantial imputation be proved true, will a slight inaccuracy in one of its details prevent defendant's succeeding, provided such inaccuracy in no way alters the complexion of the affair, and would have no different effect on the reader than that which the literal truth would produce. (Alexander v. N. E. Rail. Co., 34 L. J. Q. B. 152; 11 Jur. N. S. 619; 13 W. R. 651; 6 B. & S. 340; cf. Stockdale v. Tarte, 4 A. & E. 1016; Blake v. Stevens, 4 F. & F. 239; 11 L. T. 544.) If epithets or terms of general abuse be used which do not add to the sting of the charge, they need not be justified (Edwards v. Bell, 1 Bing. 403; Morrison v. Harmer, 3 Bing. N. C. 767; 4 Scott, 533; 3 Hodges, 108); but if they insinuate some further charge in addition to the main imputation, or imply some circumstance substantially aggravating such main imputation, then they must be justified as well as the rest. (Per Maule, J., in Helsham v. Blackwood, 11 C. B. 129; 20 L. J. C. P. 192; 15 Jur. 861.) In such a case it will be a question for the jury whether the substance of the libellous statement has been proved true to their satisfaction. (Warman v. Hine, 1 Jur. 820; Weaver v. Lloyd, 2 B. & C. 678; 4 D. & R. 230; 1 C. & P. 295 ; Behrens v. Allen, 8 Jur. N. S. 118; 3 F. & F. 135.) 66 "It would be extravagant," says Lord Denman, C.J. (in Cooper v. Lawson, 8 Ad. & E. 753; 1 P. & D. 15; 1 W. W. & H. 601; 2 Jur. 919), "to say that in cases of libel every comment upon facts requires a justification. a justification. A comment may introduce independent facts, a justification of which is necessary, or it may be the mere shadow of the previous imputation." And see Lefroy v. Burnside (No. 2), 4 L. R Ir. 556. |