The imputation must be connected with the professional duties of the plaintiff. Illustrations. To say of a man, He is the reputed father of that bastard child," is not actionable, without proof of some temporal loss, e.g. "that he lost thereby his marriage, or that he by this means should be chargeable for the maintenance of such bastard child.” Salter v. Browne, Cro. Car. 436; 1 Roll. Abr. 37. So to say of a married man that he has "had two bastards and should have kept them," is not actionable, though it is averred that by reason of such words "discord arose between him and his wife, and they were likely to have been divorced." Barmund's Case, Cro. Jac. 473. Words imputing adultery to a physician were laid to have been spoken "of him in his profession," but there was nothing in the declaration to connect the imputation with the plaintiff's professional conduct. Held, that the words were not actionable without special damage. Ayre v. Craven, 2 A. & E. 2; 4 N. & M. 220. Words imputing immorality to a trader or his clerk are not actionable withou proof of special damage. Lumby v. Allday, 1 Cr. & J. 301; 1 Tyrw. 217. Nor are words imputing to a staymaker that his trade is maintained by the prostitution of his shopwoman. Brayne v. Cooper, 5 M. & W. 249. But now see Riding v. Smith, 1 Ex. D. 91; 45 L. J. Ex. 281; 24 The following words are not actionable without proof of special damage:— "Thou art a scurvey bad fellow." Fisher v. Atkinson, 1 Roll. Abr. 43. "A villain, or a rogue, or a varlet" (for these, and words of the like kind, are "usual words of passion"). Per cur. in Stanhope v. Blith, 4 Rep. 15. "A runagate rogue." Cockaine v. Hopkins, 2 Lev. 214. "A cozening knave." "A liar." Brunkard v. Segar, Cro. Jac. 427; Hutt. 13; 1 Vin. Abr. 427. Kimmis v. Stiles, 44 Vermont, 351. "A cheat." Savage v. Robery, 2 Salk. 694; 5 Mod. 398. "You are a swindler." 66 66 Savile v. Jardine, 2 H. Bl. 531. Black v. Hunt, 2 L. R. Ir. 10. He is a rogue and a swindler; I know enough about him to hang him." Ward v. Weeks, 7 Bing. 211; 4 M. & P. 796. He is a rogue, and has cheated his brother-in-law of upwards of 2,0007.” Hopwood v. Thorn, 8 C. B. 293; 19 L. J. C. P. 94; 14 Jur. 87. 64 Thy credit hath been called in question, and a jury being to pass upon it, thou foistedst in a jury early in the morning; and the lands thou hast are gotten by lewd practices." Nichols v. Badger, Cro. Eliz. 348. "This gentleman has defrauded us of 22,000l.” Needham v. Dowling, 15 L. J. C. P. 9. Richardson v. Allen, 2 Chit. 657. 'The conduct of the plaintiffs was so bad at a club in Melbourne, that a round robin was signed urging the committee to expel them; as, however, they were there only for a short time, the committee did not proceed further." Chamberlain and another v. Boyd, 11 Q. B. D. 407; 52 L. J. Q. B. 277; 31 W. R. 572; 48 L. T. 328; 47 J. P. 372. I have seen the plaintiff; and from what I have seen and heard, I think it is my duty to urge you" (plaintiff's husband) "to send for one or two doctors to see her; some opinion ought to be taken as to the state of her mind." Weldon v. De Bathe, 33 W. R. 328. To say, "You cheat everybody, you cheated me, you cheated Mr. Saunders," is not actionable unless it be spoken of the plaintiff in the way of his profession or trade. Davis v. Miller et ux., 2 Stra. 1169. Lucas v. Flinn, 35 Iowa, 9. To call a man a "blackleg" is not actionable unless it can be shown that word was understood by the bystanders to mean "a cheating gambler liable to be prosecuted as such." Barnett v. Allen, 3 H. & N. 376; 4 Jur. N. S. 488; 27 L. J. Ex. 412; 1 F. & F. 125. In an American case the difficulty caused by absence of special damage was surmounted by suing in trespass :-A man, who, instead of walking along the street, stops on the pavement opposite the plaintiff's freehold shop using insulting and abusive language towards the plaintiff, and persists in such conduct, though requested to move on, is a trespasser, and the jury in an action of trespass may award substantial damages, though no special damages be proved, and although the abusive words be not actionable per se. (Adams v. Rivers, 11 Barbour (New York Reports) 390.) For as one of the public he was only entitled to use the highway for passing and repassing. (Doraston v. Payne, 2 Sm. L. Cas. (9th ed.) p. 154.) And evidence of his language while committing a trespass is properly admitted to show in what spirit the act was done. (Merest v. Harvey, 5 Taunt. 442.) "Where a wrongful act is accompanied by words of contumely and abuse, the jury are warranted in taking that into consideration and giving retributory damages." Per Byles, J., in Bell v. Midland Rail. Co., 10 C. B. N. S. 287, 308; 30 L. J. C. P. 273; 9 W. R. 612; 4 L. T. 293. By virtue of certain ancient statutes, words which would not be actionable, if spoken of an ordinary subject, were formerly actionable if spoken of a peer of the realm, or of a judge, or of any of the great officers of the Crown, without proof of any special damage. These were called the Statutes of Scandalum Magnatum: they were three in number:-3 Edw. I. Stat. Westminster I. c. 34; 2 Rich. II. Stat. 1, c. 5; 12 Rich. II. c. 11. But these statutes had become obsolete; no proceeding had been taken under any of them since 1710; and they were all three repealed by the Statute Law Revision Act, 1887 (50 & 51 Vict. c. 59). 66 All words, if published falsely and without lawful occasion, are actionable, if they have in fact produced special damage to the plaintiff, such as the law does not deem too remote. 66 Any words by which a party has a special damage" are actionable. (Comyns' Digest, Action upon the Case for Defamation, D. 30.) Undoubtedly all words are actionable, if a special damage follows" (per Heath, J., in Moore v. Meagher, 1 Taunt. 44), provided they are in their nature defamatory. (Kelly v. Partington, 5 B. & Ad. 645; Sheahan v. Ahearne, (1875) Ir. R. 9 C. L. 412.) If the words are not in their nature defamatory, that is, if they have not injured the reputation of any one, no action of libel or slander will lie, however maliciously they were published. But if the defendant maliciously intended to injure the plaintiff by his words and succeeded in his malicious intent, and damage to the plaintiff was the direct result of the defendant's words, an action on the case will lie, whatever the nature of the words, provided they are untrue. Actions of this kind are discussed in the next chapter. CHAPTER IV. ACTIONS ON THE CASE FOR WORDS WHICH CAUSE DAMAGE. So far we have dealt only with defamatory words: that is, with words which injure the reputation of some person. In all actions for defamatory words the law presumes in favour of the plaintiff that the words are false; the plaintiff need not prove any actual malice; and special damage, as we have seen, need only be proved in certain cases. We pass now to words of an entirely different characterto words, that is, which are not defamatory of any individual, which do not injure the reputation of any one, either personally or in the way of his trade or profession, but which were intended to cause, and which did cause, pecuniary loss to some one. No action of libel or slander will lie for such words. But when a defendant either knows or ought to know that special damage will happen to the plaintiff if he writes or speaks certain words, and he writes or speaks those words, desiring and intending that such damage shall follow, or recklessly indifferent whether such damage follows or not, then, if the words be false, and if such damage does in fact follow directly from their use, an action on the case will lie. And in such an action on the case it is the plaintiff who must prove that the words are false, that they were published by the defendant with some degree of malice, and that actual damage has ensued. He must prove his whole case; there is no presumption to lighten his burden. The right of action is one that survives to an executor for damage done to the estate of his testator; whereas a right of action for libel or slander dies with the person. (Hatchard v. Mège, (1887) 18 Q. B. D. 771.) "That an action will lie for written or oral falsehoods, not actionable per se, nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage, wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it, actual damage must be shown, for it is an action which only lies in respect of such damage as has actually occurred." (Per cur. in Ratcliffe v. Evans, (1892) 2 Q. B. at p. 527; and see the judgment of Day, J., in Hatchard v. Mège, (1887) 18 Q. B. D. at p. 775.) "There is a class of cases, of which this is one, the true legal aspect of which, however they may be described technically, is that they are actions for unlawfully causing damage. The damage is the gist of the action." (Per Lord Halsbury, L.C., in Royal Baking Powder Company v. Wright, Crossley & Co., (1900) 18 Rep. Pat. Cas. at p. 104.) "This is not an action for libel or defamation of character. I think it can only be maintained as . . an action on the case for maliciously damaging the plaintiffs in their trade . . . To support such an action it is necessary for the plaintiffs to prove (1) that the statements complained of were untrue; (2) that they were made maliciously, i.e. without just cause or excuse; (3) that the plaintiffs have suffered special damage thereby. The damage is the gist of the action, and therefore, according to the old rules of pleading, it must be specially alleged and proved." (Per Lord Davey, Ib., p. 99.) "The plaintiff must prove two things: first, that the libel* was maliciously published; and, secondly, that specific money damage has resulted from it. If either of these ingredients be absent the action must fail." (Per Lord James of Hereford, Ib., p. 101.) "Unless the plaintiff has in fact suffered loss which can be and is specified, he has no cause of action. The fact that the defendant has acted maliciously cannot supply the want of special damage." (Per Lord Robertson, Ib., p. 103.) The special damage which is the gist of the action must be some pecuniary loss or some other loss of the kind indicated in Chapter XIII., post, p. 347; it must be capable of assessment in monetary value, and it must not be too remote; that is, it must be either the natural and necessary result of the defendant's words, or a result which the defendant in fact contemplated and desired. *See note on p. 75. |