216 CHAPTER XIV. Damage by inference of law. As to what in legal contemplation amounts to actionable damage. Hindrance from succession to preferment. THE Consequence of actionable slander must be to occasion some injury to the plaintiff, either in law or in fact. When the immediate tendency of the slander is to produce damage to the individual of whom it was spoken, it is actionable, though no actual damage has in fact resulted: damage by inference of law having arisen; as in the case of libel; which the law considers to be so deliberately mischievous in tendency, and injurious in consequences, as to confer a substantive right of action although no specific loss or damage can be proved: and so also in the case of slander where the words affect the plaintiff in his office, profession, trade, or business; or where they impute to the plaintiff the commission of an indictable offence. Actionable damage, is such as affects either rights already acquired, or prevents the acquisition of some further benefit or advantage. Where the plaintiff has been wrongfully charged with the commission of some indictable offence, if the imputation rests as a bare charge, not officially made in the usual course of a criminal proceeding, the accused has a right to consider as special damage, the expense and labour to which he is put for the purpose of manifesting his innocence. As in a case where the plaintiff, in consequence of an insinuation that he was guilty of murder, was obliged to have an inquest taken on the body of the deceased (a). In general where the plaintiff is hindered by the mere wrongful act of the defendant, from succeeding to any preferment, benefit, or advantage; he may maintain an action for the special damage. As if a patron intend to present a divine to a benefice, and the defendant say of him "He is a heretic"; (a) Peake v. Oldham, Cowp. 277; per Lord Mansfield, C.J. or a bastard" "; for which reason the patron refuses to present CHAPTER XIV. and he thereby loses preferment, an action is him maintainable (b). business. And where the defendant represented to a third party, that Hindrance and he had a lien on certain goods then in the possession of such delay in third party, and that the plaintiff was in embarrassed circumstances, and thereby prevented the delivery of the goods to the plaintiff; it was held, on demurrer, that the declaration disclosed a good cause of action (c). business or employment. In an action by a surgeon and accoucheur for slander Loss of Office, imputing to him, in words spoken to D., that a female servant had a child by him; whereby (as special damage) D. would not employ him as an accoucheur to attend his wife: it was held, that the plaintiff's damages were not limited to the mere loss of the fee for attending D.'s wife in her confinement; that the jury might give damages in respect of the loss of business arising directly from the slander spoken by the defendant to D.; but that he was not entitled to such general damages as might be supposed to have arisen from repetitions of the slander by other persons (d). The loss of particular customers by a tradesman in conse- Loss of Custom quence of slander, is an actionable special damage (e). To in Trade. publish of a trader any statement, whether a slander or not, the natural tendency and consequence of which is to deter customers from dealing with him, is actionable, if followed by special damage; such as a general loss of custom (ƒ). business. In an action for the publication in a newspaper of a malicious General loss of falsehood concerning the plaintiff's business; the words published were not actionable per se, nor were they defamatory of the plaintiff, but they were such as had a tendency to injure him in his business; it was held, that evidence of a general loss of business if shown to have been the direct and natural consequence of the publication of the falsehood alleged, was admissible in support of the action (g). And in an action for slander of the plaintiff as an innkeeper, proof of a general loss of custom is sufficient to sustain the (b) Sir J. Tasburgh v. Day, Cro. Jac. 484. (c) Green v. Button, 2 C. M. & R. 707. (d) Dixon v. Smith, 5 H. & N. 451; 29 L. J. Ex. 125. (e) Barron v. Gibbons, Lord Ray, 831; Bul. N. P. 7; 1 Lev. 140; Bate- (f) Riding v. Smith, 1 Ex. D. 91; (g) Ratcliffe v. Evans (1892), 2 Q. B. 524; 61 L. J. 535. CHAPTER XIV. action, without naming particular customers (h). But in an Diminution in action by a dissenting minister for slander of him in his office number of worshippers at a Chapel. Loss of as such, a diminution in the number of worshippers at the chapel where he officiates, is not alone sufficient evidence of special damage; there being no evidence that the plaintiff lost any emolument thereby (i). Prior to the "Slander of Women Act, 1891," words character from imputing unchastity to a woman, whether married or single, imputations of unchastity, or were not actionable unless some specific damage could be adultery. proved; or unless the imputation was published in writing (k) : the suffering party, whose peace of mind had been destroyed, or whose prospects had been ruined, had, in such cases, no remedy (1). But now it is enacted, that words spoken and published, after the passing of that Act, which impute unchastity or adultery to any woman or girl, shall not require special damage to render them actionable (m). Loss of marriage. Loss of the hospitality of friends. Loss of marriage seems always to have been considered a temporal damage (n). In Matthews v. Crass (0), which was an action for words occasioning loss of marriage; after verdict for the plaintiff, it was urged, on motion in arrest of judgment, that this was the first case where loss of marriage was ever laid for words spoken of a man, and therefore was not warranted by Ann Davis's case (p). But the court conceived it to be immaterial, in case of loss of marriage, whether the plaintiff be a man or a woman. Prior to the statute of 1891 (supra), the judges from time to time, frequently expressed regret at the state of the law whereby verbal imputations of unchastity upon women were not actionable without proof of special damage (q). In many cases, (h) Erans v. Harries, 1 H. & N. 254 26 L. J. Ex. 31. See also Rose v. Groves, 5 M. & Gr. 613. (i) Hopwood v. Thorn, 19 L. J. C. P. 94; 8 C. B. 293. (k) Knight v. Gibbs, 1 A. & E. 43; 3 Nev. & Man. 469; Wilby v. Elston, 8 C. B. 142; 18 L. J. C. P. 320; Roberts and ux. v. Roberts, 33 L. J. Q. B. 249; 5 B. & S. 384. (7) Formerly proceedings might be instituted in the Ecclesiastical Courts, which had the power to punish offenders for this species of defamation; the jurisdiction, however, of those courts in suits for defamation was taken away by statute, in England, by 18 & 19 Vict. c. 41; and, in Ireland, by 23 & 24 Vict. c. 32. (m) 54 & 55 Vict. c. 51. (n) Davis v. Gardiner, 4 Co. 16; Poph. 36; 1 Koll. Rep. 34, 35, 109; Mo. 409; Cro. Car. 155; case of Sir C. Gerald's bailiff; Bull N. P. 7; Vin. Abr. Ac. on Case for Words (D. a). (0) Cro. Jac. 323. (p) 4 Co. 16. (q) Greaves v. Blanchet, Salk. 695; 6 Mod. 148; 12 Mod. 106; 8 Will. 3; Wilby v. Elston, 8 C. B. 142; 18 L. J. C. P. 320; Knight v. Gibbs, 1 A. & E. 43; 3 Nev. & Man. 469; Lynch v. Knight and wife, 9 H. L. 593; Roberts and wife v. Roberts, 33 L. J. Q. B. 250; 5 B. & S. 384. however, they manifested a desire to administer every relief in CHApter XIV. their power to plaintiffs of this description, so that the most trifling loss sustained in consequence of such slander, as of a dinner or other hospitable but gratuitous entertainment (7) was held sufficient special damage to entitle the party to her action (s). injury. A mere apprehension of ill consequences cannot constitute Prospective or a special damage; so that it has been held to be insufficient for anticipated the plaintiff to allege, that in consequence of the words, discord happened between him and his wife, and he was in danger of a divorce (t). Or, to say he lost the affection of his mother, who intended him £100 (u). But in an action for libelling a copartnership; Cresswell, J., ruled that the jury might take into consideration in estimating the damages to which the plaintiffs were entitled, the prospective injury which might accrue to the partnership from the defendant's act (x). slander; As to how the special damage must be connected with the Special slander in order to constitute a ground of action. Where the be connected Damage must damage actually done is the gist of the action, the character of with the the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved (y). natural and The rule appears to be, that the damage must be the natural, and be the and direct or reasonable consequence of the wrongful act. So, direct consewhere the defendant asserted that the plaintiff had cut his quence of the master's cordage; upon which the master discharged him, wrongful act ; though he was under an engagement to employ him for a term. It was held, that the discharge was not a ground of action; that the special damage must be the natural and legal consequence of the words spoken (2). attributable to The damage must be attributable wholly to the words; and and wholly so where, in consequence of the words, a third person has the words. refused to perform a contract previously made with the plaintiff, and which he was in law bound to perform, no action (r) Moore v. Meagher (in Error), 1 Taunt. 39. (8) Daries and wife v. Solomon, 41 L. J. Q. B. 10; 20 W. R. 167; Hartley v. Herring, 8 T. R. 130; Allsop and wife v. Allsop, 5 H. & N. 534; 29 L. J. Ex. 315. (t) 1 Roll. 34. (u) Car. 1; 1 Com. Dig. tit. Defam. D. 30. (x) Gregory and another v. Williams, 1 Car. & Kir. 568. And see Ingram v. Lawson, 6 Bing. N. C. 212. (y) Vide Ratcliffe v. Erans (1892), 2 Q. B. 532. () Vicars v. Wilcocks, 8 East, 1. CHAPTER XIV. is maintainable; for the plaintiff, in such case, is entitled to a compensation for the non-performance of the contract; and were he allowed to maintain his action for the slander, he would receive a double compensation for the same injury; first, against the author of the slander; and secondly, against the person who had refused to perform his agreement (a). It has, however, been ruled, that the wrongful refusal of a third party to fulfil a contract, may give a right to special damage for a slander, if such refusal be the probable consequence of the utterance of the slander (b). Loss of Membership of a Club. Plaintiff cannot twice recover damages for same words. Where the plaintiff was a candidate for election to a London club; and upon a ballot of the members was not elected: a meeting was afterwards called to consider a proposed alteration of the rules as to the election of members: the defendant said of the plaintiff that "his conduct was so bad at a club in Australia that a round robin was signed urging the committee to expel him." In an action of slander, alleging that the defendant thereby "induced, or contributed to induce, a majority of the members of the London club to retain the regulations under which the plaintiff had been rejected, and thereby prevented him from again seeking to be elected to the club": it was held, on demurrer, that the claim disclosed no cause of action; for the words were not actionable in themselves, and the allegation of damage was too remote and was not the natural or probable consequence of the words spoken (c). And Bowen, L.J., in the course of his judgment, observed :"I do not say that if the defendant, by speaking the words complained of, had actually prevented the election of the plaintiff, the latter might not have had a cause of action. Possibly the membership of a club may be a matter of temporal advantage, and the deprivation of it may be an injury or damage of which the law will take cognizance" (d). If the damage alleged be not the natural consequence of the words spoken, it will be too remote to support the action (e). The plaintiff having once recovered damages in an action for words, cannot afterwards recover an ulterior compensation for any loss subsequently resulting from the same words (ƒ). Where the plaintiff, knowing the defendant's sentiments, (d) Ibid., 11 Q. B. D. 415. 138. (f) Bull. N. P. 7. |