"Sec. 502. In all cases brought hereafter for personal injury or where such injuries have resulted in death the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured."

In six states the rule has been applied specifically to cases where an employee is suing a railroad company: Kansas, North Carolina, South Carolina, South Dakota, Virginia, and Wyoming.19 In Nevada the rule has been applied to actions by employees against mine owners. Revised Laws (1919) 5651.20 But all these statutes are covered by the general provisions of the Workmen's Compensation Acts, and the same cases would be covered by the rule in those Acts without them.

It would seem that the rule is being made more and more general by the actions of the various state legislatures. When the great number of Workmen's Compensation Acts is considered, and the wide field of injuries which they cover is taken into account, it must be admitted that the rule is something more than an anomalous exception to the doctrine of contributory negligence. And when to these Workmen's Compensation Acts are added the provisions of those four states which have frankly substituted the doctrine of comparative negligence for that of contributory negligence, the common law rule of Tennessee, and the restricted statutes of those seven states which apply a specially limited form of the rule, it would seem that the new doctrine is assuming the position of a rival of the old; not very strong as yet, but growing.

It has been rather generally criticised,21 most of the criticism going to its lack of definiteness, the difficulty of the jury in apportioning damages, the impossibility of enforcement in the courts, the openings for fraud, etc. It seems, however, that these are no more than the old stock arguments that are resurrected and pressed into service every time a new doctrine, embodying more flexible principles, is advanced. None of them go to the intrinsic worth and desirability of the rule, but only to the difficulty of administering it, and even in this they are not of great weight. For how it is possible to maintain that a jury which can decide that a plaintiff has suffered $1,234 damage, but is incapable of ascertaining that the plaintiff, by his fault, ought to be made to bear 30%, or 50%, or 70%, of the loss, is rather difficult to see. And why the courts, who are capable of handling infinitely more complicated situations, and who are trusted to guard against fraud in any number of other situations, are incapable in this one instance of so doing, is equally mystifying. Neither in the Civil Law, in which the rule has been administered for more than two thousand years, nor in the English and American ad

19Kansas, Statutes (1923), 66:23; North Carolina, Public Laws (1919), 3467; South Carolina Code (1922), 4915; South Dakota, Rev. Code (1919), 9709; Virginia, Code (1924), 5792; Wyoming, Comp Stat. (1920) 5387.

20 Peterson v. Pittsburg Silver Peak Gold Mine Co. 37 Nev. 117, 140 Pac. 519 (1914).

21(1924) 24 COL. L. Rev. 551 (5); (1897) 10 HARV. L. Rev. 387 (6).

miralty courts, which have followed a similar rule for centuries, has there been any difficulty or fault found in the rule. It is a poor commentary on our judicial system if a rule which has been successfully administered throughout most of the civilized world for centuries on end, is too difficult for our courts, and too complicated for our juries.

No argument has been advanced against the intrinsic justice of the rule. It is admitted that a rule which denies any relief whatsoever to a plaintiff who has been negligent, no matter how slight or insignificant his negligence may be in comparison to that of the defendant, does not even approximate justice except in cases where the fault is almost entirely in the plaintiff. But the courts have held to the rule because it is simple, being sweeping, and because it has been the law. It is good to see, in the increasing number of cases applying the new doctrine in the recent volumes of the reports, that a fairer and more equitable rule is gaining more widespread recognition.

Eugene J. Conroy.

Torts: Libel and slander: Extrinsic facts necessary to render words libelous.-In Fletcher v. Cincinnati Realty Co. 153 N. E. 213 (Ohio 1926) the defendant, having entered into a contract to furnish the necessary incidents to a banquet to be held at its hotel by the plaintiff, refused to serve the banquet and published:

"Announcement. A letter has been sent to many citizens in Cincinnati announcing a public banquet at the Hotel Sinton at 6:30 p. m. January 16, to discuss railroad improvements, etc.

The citizens of Cincinnati are hereby informed that no such banquet will be held at the Hotel Sinton under the auspices of the signer of the letter which has been circulated.

Hotel Sinton January 15, 1925.

The Management,

The court on demurrer to petition held that no cause of action was stated, since the announcement was not libelous per se, adding that words not libelous upon their face, may, in consequence of extrinsic facts giving rise to libelous matter by innuendo, be actionable, and that they knew of no law where the public announcement of the refusal to carry out a contract was libelous where no libelous reason was given for the refusal.

Publications have been divided into three classes. First are those held not to be actionable because they cannot possibly bear a defamatory meaning. The second are those that are reasonably susceptible of a defamatory meaning as well as an innocent one, which become actionable because ambiguity or extrinsic facts such as place, and circumstances2 impress on the words a meaning and

1Kee et al v. Armstrong Byrd and Company, 75 Okla 84, 182 Pac. 494 (1919); Phoenix Printing Company v. Robertson, 80 Okla 191, 195 Pac. 487 (1921); Oklahoma Publishing Company v. Kendall, 96 Okla. 194, 221 Pac. 762 (1923). "Quinn v. Prudential Insurance Co., 116 Iowa 522; 90 N. W. 349 (1902); Riley v. Gordon, 192 App. Div. 443, 182 N. Y. Supp. 790 (2nd Dept. 1920).

4

suggestion which, standing alone, they do not have. The third class of publications, namely, those which, when viewed by a stranger without knowledge of the parties, are clearly defamatory on their face, are libelous per se, and are actionable without extrinsic facts or explanatory innuendoes.5-6

In borderline cases, courts seek to protect the individual by allowing him to indicate unusual results of the publication by the allegation and proof of extrinsic matter,' which is the precise problem of the

33 BL. COMM. *123, "But with regard to words that do not thus, apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened, which is called laying his action with a per quod."

Manly v. Harer, 73 Mont. 253, 235 Pac. 757 (1925).

Wofford v. Meekes, 129 Ala. 349, 30 So. 625 (1900); People v. Spielman, 318 Ill. 482, 149 N. E. 466 (1925); McDermott v. Unoin Credit Co., 76 Minn. 84, 78 N. W. 967 (1906); Wright v. Great Northern Ry., Mo. App., 186 S. W. 1085 (1916); Frazier v. Grob, 194 Mo. App. 405, 183 S. W. 1083 (1916); Curley v. Feeney, 62 N. J. L. 70, 40 Atl. 678 (1898); Manley v. Harper, supra note 4.

"Warner v. Clark, 45 La. Ann. 863, 13 So. 203 (1893). Louisiana courts are not bound by the technical distinction of the common law between words that are libelous and those that are libelous per se.

'Smith v. Gaffard, 33 Ala. 168 (1858); "She is sick" in order to mean "she has had a child" needs proof of facts showing they were understood that way. Baxter v. Dorrington, 13 Ariz. 140, 108 Pac. 459 (1910); statement that an ordinance prepared by city attorney imposing a tax on keepers of houses of ill-fame was vague in its limitations, and that the attorney forgot to add a provision repealing a section of the penal code needs extrinsic facts to be libelous. Maynard v. Fireman's Fund Insurance Co., 47 Cal. 207 (1873); Publication by insurance company that an agent had been dismissed for good and sufficient reasons may sustain an action for libel upon facts showing the words were understood as imputing wrong-doing. Crossland v. Freeman, 7 Boyce 195, 105 Atl. 145 (Del. 1918); Publication that sheriff had an arrangement with the leader of a gang to supply a team at any time and that the leader spent the summer bootlegging, and was known to have hired a team every evening for that purpose, was actionable with facts showing imputation of a particular offense. Miles v. Van Horn, 17 Ind. 245 (1861); Word alleged to impute sexual intercourse was actionable with facts to show its import at the time and place of use. Bays v. Hunt, 60 Iowa, 251, 14 N. W. 785 (1882); "You will steal" or "I believe you will steal" were actionable with facts to show that the words spoken under the peculiar circumstances attending their utterance expressed a charge of crime committed. Hughes v. Samuels, 179 Iowa 1077, 159 N. Y. 589 (1916); Card sent by an undertaker stating, "Bear in mind our undertaking department. Satisfaction guaranteed" signed with rival undertaker's name was libelous with the fact that the wife of the recipient was critically ill. Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509 (1909); Words "dirty slut" spoken of a woman do not of themselves impute unchastity but may in the light of the occasion and circumstances. Sturdivant v. Duke, 155 Ky. 100, 159 S. W. 621 (1913); To call a woman a "bitch" does not impute unchastity unless extrinsic facts prove the word was not used in its customary meaning. Axton Fisher Tobacco v. Evening Post Co., 169 Ky. 64, 183 S. W. 269 (1916); to charge: that a company placed a negro foreman over white girls, who quit and reported the trouble to the union; that on refusal to remove him, the company was placed on the unfair list by the union; that the advertising cards of the company were printed in scab shops so as to display its contempt for organized labor; held actionable with extrinsic facts that the company employed only union labor, had obligated itself to patronize only union shops, had a good reputation with organized labor and wage-earners, that its product was sold in large quantities among wage-earners, and innuendo that the effect of the publication was to destroy the company's good reputation with organized labor and the public as the operator of a union factory. York v. Mims, 179 Ky. 525, 200 S. W. 918 (1918); To charge that one

8

instant case. Such facts can not be raised by innuendo, must not be matters of mere opinion, but traversable facts, and must show that the publication applied to the plaintiff.10 Statutory provisions

took papers and a check from a desk was actionable only with extrinsic facts proving imputation of the commission of a felony, the words alone importing a mere trespass. Gastineau v. McCoy, 190 Ky. 463, 227 S. W. 801 (1921); To say that "one dug up a corner to move down on him" was actionable with facts showing that the words were spoken with reference to a corner of a survey of land, and imputed the removal of the stump which marked the corner, the act also being a crime by statute. Brown v. Rouillard, 117 Me. 55, 102 Atl. 701 (1917); "You burned your buildings" was actionable when united by the hearers with facts and circumstances which together conveyed a charge of crime. Brinsfield v. Howeth, 107 Md. 278, 68 Atl. 566 (1908); To charge that a girl is fast, of loose character, and not fit to teach school is not actionable in the absence of anything to show that the words had acquired a meaning imputing want of chastity by local understanding. Carter v. Andrews, 16 Pick. 1 (Mass. 1834); To say at a public sale of books, "We offer these books under a disadvantage for the library has been plundered by James G. Carter" was not actionable without facts importing a felonious acquisition of property. Newell v. How, 31 Minn. 235, 17 N. W. 383 (1883); To write to a concern to whom the plaintiff was indebted asking to what extent he was indebted to them for the purpose of preparing a financial register was not libelous as imputing insolvency without facts affecting the construction of the words. A subsequent letter advising caution was libelous per se. McDermott v. Union Credit Company, 76 Minn. 84, 78 N. W. 967 (1906); Publication of the name of a merchant in a list of delinquent debtors in connection with extrinsic facts showing that such list is in effect a black list, and imputes that the persons named therein are not worthy of credit, is libelous. Parsons v. Henry, 177 Mo. App. 329, 164 S. W. 241 (1914); Statement that "this boy's mother abandoned her child when he was four years old and ran away with another man" becomes actionable with extrinsic facts that she was a woman above reproach in character and was living with her husband. Fensky v. Maryland Casualty Co., 264 Mo. 154, 174 S.W. 416 (1915); To charge that a contract one claimed to have with another was not signed by him, imputed forgery with facts that the plaintiff was asserting rights under such a contract which evidenced a lien on a cause of action in which the defendant was interested as indemnitor. Gillespie v. Byrne, 151 App. Div. 703, 136 N. Y. Supp. 207 (1st Dept. 1912); "You took something in your stocking everyday this week" actionable with extrinsic facts to make out theft. Riley v. Gordon, supra note 2; To charge that plaintiff cashed a check was libelous with extrinsic facts that the parties were employed in the same concern, that a check drawn by the employer was stolen, and by means of a forged signature cashed, and that these facts were known to the persons in whose presence the charge was made. Bell v. Clinton Oil Mill, 129 S. C. 242, 124 S. E. 7 (1924); Statement that plaintiff's company was going to place its account with a surety indemnifying company against certain acts of its employees would be actionable with facts showing the bond covered only defalcations criminal in their nature. Sweetapple v. Jesse, 5 B. & Ad. 27 (Eng. 1833); "He has set his own premises on fire" was actionable with facts that the house was insured and the intention to convey to the hearers that plaintiff tried to defraud the insurance company. Morrison v. Ritchie & Co., F. 645 (Eng. 1902). To include the name of a woman in a list of births was libelous as charging unchastity, with the fact that many who read the advertisement knew she had been married only one month.

Water

Duvivier v. French, 104 Fed. 278 (1900); Age Herald Publishing Co. v. man, 188 Ala. 272, 66 So. 16 (1913); Cooper v. Seaverns, supra note 7; Sturdivant v. Duke, supra note 7; Platto v. Geilfuss, 47 Wis. 491, 2 N. W. 1135 (1879). 'Age Herald Publishing Co. v. Waterman, supra note 8; Carter v. Andrews, supra note 7; Feely v. Vitagraph Co. of America, 184 App. Div. 527, 172 N. Y. Supp. 264 (2nd Dept. 1918).

10Miller v. Maxwell, 16 Wend. 10 (N. Y. 1836); Tyler v. Tillotson, 2 Hill 507 (N. Y. 1842) illustrate the technical common law rule.

making it necessary only to allege that the publication was made of and concerning the plaintiff" do not obviate the necessity of setting out extrinsic facts to show that an apparently harmless statement was in fact defamatory.12

That meaning which the publication did convey-the tendency of the language and not its form being the criterion13-is determined by the effect "...upon the minds of readers of reasonable understanding, discretion, and candor, after it has been examined and considered in connection with all other parts of the writing and in light of all the facts and circumstances known to them."14-15 Under this principle, what extrinsic facts could make such a publication as the one under consideration actionably libelous?

It seems the publication should be deemed libelous: (1) as imputing insolvency and want of credit16 if the announcement is linked with facts proving that the defendant had investigated the plaintiff's credit to the knowledge of the invitees, who, in the instant case, numbered five hundred, and that the defendant had established a custom of refusing to serve banquets for want of credit; (2) if it imputed low moral and social standing," which would be suggested by facts tending to prove that the hotel, to the knowledge of the community, catered to people of high rank socially and morally, was meticulous in its choice of patrons, having previously excluded others because of moral and social reasons. Thus the extensive announcement would impugn the standing of the plaintiff in the community and subject him to ridicule and contempt. (3) The publication should be declared libelous if it carried the imputation that the plaintiff broke the contract between the parties, 18 where the invitees

"N. Y. Civ. Prac. Rule 96.

12Quinn v. Prudential Insurance Co. of America, 116 Iowa 522, 90 N. W. 349 (1902); Ten Broeck v. Journal Printing Co., 166 Minn. 173, 207 N. W. 497 (1926); Flowers v. Smith, 214 Mo. 98, 112 S. W. 499 (1908); Corr v. Sun Printing and Publishing Assoc., 177 N. Y. 131, 69 N. E. 288 (1904); VanHeusen v. Argenteau, 124 App. Div. 776,109 N. Y. Supp. 238 (1st Dept. 1908).

Wofford v. Meeks, supra note 5; Martin v. Maltoon Journal Co., 208 Ill. App. 53 (1917). Positive assertion of a charge is not necessary, it may be made in the form of insinuation, allusion, irony, or questions. If the words convey a defamatory imputation obliquely or by inference however indirect, it is a libel. 14Thompson v. Lewiston Daily Sun Pub. Co., 91 Me. 203, 39 Atl. 556 (1898). Lukeheart v. Byerly, 53 Penn. 418 (1866); To say one had “taken apples' was not actionable. Words must be taken in their plain and popular sense as people understand them.

16ODGER'S LIBEL and Slander (1911) 13. An imputation of insolvency or suggestion that one is in pecuniary difficulties is actionable. McDermott v. Union Credit Co., supra note 7; Mott v. Comstock, 7 Cow. 654 (N. Y. 1827), where the publication was "There is poor H., it is hard for him to lose his debt;" Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354 (1899), where a publication that a judgment had been recovered against one was not libelous per se, but would have been actionable with an imputation that it remained unpaid.

17Newell, Libel and Slander (1924), 55. Words "which hold a man up to scorn and ridicule and to feelings of contempt, impair him in the enjoyment of general society, and injure those imperfect rights of friendly intercourse and mutual benevolence which man has in respect to man, and affect his general fortune and comfort" are actionable.

18NEWELL, op cit. supra note 17 at 156. Words are actionable which directly tend to the prejudice of anyone in his office, profession, trade or business. Ibid. sec. 136; words which impute a want of integrity to anyone holding an office of