was held, in the Supreme Court of Victoria, not actionable without proof of special damage, as not affecting plaintiff in his trade. But the plaintiff having alleged that, by reason of the words, people who used to frequent his restaurant ceased to deal with him, it was held the special damage made the words actionable, and that the special damage was sufficiently alleged; that the cases of frequenters of theatres, members of congregations, and travellers using an inn, were exceptions to the rule requiring the names of the customers lost to be set forth. Brady v. Youlden, Kerferd & Box's Digest of Victoria Cases, 709; Where the words are not actionable without special damage, the jury, as we have seen, must confine their consideration to such special damage as is specially alleged and proved. It may, therefore, very well be argued that if any fresh damage followed in the future, that would constitute a fresh ground of action. And of this opinion was North, C. J., in Lord Townshend v. Hughes, 2 Mod. 150. But Buller, in his "Nisi Prius," p. 7, lays it down most distinctly, that where a plaintiff "has once recovered damages, he cannot after bring an action for any other special damage, whether the words be in themselves actionable or not." And Lord Holt is certainly reported as saying so obiter in Fitter v. Veal, 12 Mod. 542; not in the other reports, 1 Ld. Raym. 339, 692; 1 Salk. 11. The matter was much discussed in Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127; 55 L. J. Q. B. 529; 54 L. T. 882, and Lord Blackburn unfortunately differed from Lord Bramwell (11 App. Cas. pp. 143, 145). I think, however, after the decision in that case, the better opinion is that a second action will lie for fresh special damage. III. SPECIAL DAMAGE WHERE THE WORDS ARE ACTIONABLE PER SE. Where special damage is not essential to the action, it may still of course be proved at the trial to aggravate the damages, if it has been properly pleaded. The same particularity is required whether the words be actionable per se or not. So, too, plaintiff must still prove that the special damage alleged is the direct result of the defendant's words, and not of any repetition of them by others. (Tunnicliffe v. Moss, 3 C. & K. 83; Hirst v. Goodwin, 3 F. & F. 257.) But in other respects the law is not quite so strict as to what constitutes special damage in the first case as in the second. Thus, where the words are not actionable per se, we have seen that mental distress, illness, expulsion from a religious society, &c., do not constitute special damage. But where the words are actionable per se, the jury may take such matters into their consideration in according damages. "Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested." (Per Lord Wensleydale, in Lynch v. Knight and wife, 9 H. L. C. 598. See also Haythorn v. Lawson, 3 C. & P. 196; Le Fanu v. Malcolmson, 8 Ir. L. R. 418.) And had the charge against Mrs. Roberts been one of felony, I do not think any judge would have excluded the evidence as to her expulsion from her religious sect. Again, where words are spoken of the plaintiff in the way of his profession or trade, so as to be actionable per se, the plaintiff may allege and prove a general diminution of profits or decline of trade, without naming particular customers or proving why they have ceased to deal with. him. (Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 471; 4 Jur. 151; 9 C. & P. 326; Harrison v. Pearce, 1 F. & F. 569; 32 L. T. (Old S.) 298; and per Cresswell, J., in Rose v. Groves, 5 M. & Gr. 618, 619.) In Delegal v. Highley, 8 C. & P. 448, it is true, Tindal, C. J., refused to allow any evidence to be given of general loss of business, on the ground that the law already presumed such loss in the plaintiff's favour; but this decision must now be considered overruled. Of course, if the plaintiff desires to go into such details at the trial, he may plead them specially and call the customers named as witnesses. Still if the customers are not called at the trial, or if for any other reason the proof of the special damage fails, the plaintiff may still fall back on the general damage and prove a loss of income induced by the slander. (Cook v. Field, 3 Esp. 133; Evans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31.) This he cannot do when the words are not actionable per se; see ante, p. 303. But where the law already presumes that the plaintiff is injured in his business, so that the jury must give him some damages, evidence as to the nature and extent of plaintiff's business before and after publication is clearly admissible to enable the jury to fix the amount. Lastly, where it is clear that the action lies without proof of any special damage, any loss or injury which the plaintiff has sustained in consequence of defendant's words, even after action brought, may be proved to support the legal presumption, and to show from what has actually occurred how injurious and mischievous those words were. Illustrations. Where the defendant advertised in Hue and Cry that the plaintiff had been guilty of fraud, and offered a reward for his apprehension, and the plaintiff immediately sued on the libel, and after action brought was twice arrested in consequence of it: he was allowed to give evidence of these two arrests at the trial, not indeed as special damage, for they happened after action brought, but in order to show the injurious nature of the libel, and that the plaintiff was at time of action brought in serious danger of being arrested. Goslin v. Corry, 7 M. & Gr. 342; 8 Scott, N. R. 21. Where the defendant published in a newspaper that a certain ship of the plaintiff's was unseaworthy, and had been purchased by the Jews to carry convicts, evidence as to the average profits of a voyage was admitted, and also evidence that upon the first voyage after the libel appeared the profits were nearly £1,500 below the average, and this although the action was brought immediately after the libel appeared, and before the last-mentioned voyage was commenced. The jury, however, awarded the plaintiff only £900 damages. Ingram v. Luwson, 6 Bing. N. C. 212; 8 Scott, 471. Where a declaration alleged that the defendant spoke words of the plaintiff, a dissenting minister, in the way of his office and profession, and his congregation rapidly diminished, and he was compelled for a time to give up preaching altogether, and lost profits thereby; it was held that this was a sufficient allegation of special damage, although the members of his congregation were not named. Hartley v. Herring, 8 T. R. 130. Hopwood v. Thorn, 8 C. B. 293; 19 L. J. C. P. 94; 14 Jur. 87. Where words actionable per se are spoken of an innkeeper in the way of his trade, evidence may be given of a general loss of custom and decline in his business. Evans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31. "Suppose a biscuit baker in Regent Street is slandered by a man saying his biscuits are poisoned, and in consequence no one enters his shop. He cannot complain of the loss of any particular customers, for he does not know them, and how hard and unjust it would be if he could not prove the fact of the loss under a general allegation of loss of custom." Per Martin, B., in Evans v. Harries, 26 L. J. Ex. 32. And see Weiss v. Whittemore, 38 Michigan, 366. But where defendant charged plaintiff with larceny, and the words were repeated by H. to Carpmole, who in consequence refused to employ plaintiff, evidence of such special damage was rejected. Tunnicliffe v. Moss, 3 C. & K. 83. IV. EVIDENCE FOR THE PLAINTIFF IN AGGRAVATION OF DAMAGES. The violence of the defendant's language, the nature of the imputation conveyed, and the fact that the defamation was deliberate and malicious, will of course enhance the damages. All the circumstances attending the publication may therefore be given in evidence, and any previous transactions between the plaintiff and the defendant which have any direct bearing on the subject-matter of the action, or are a necessary part of the history of the case. The jury will also consider the rank or position in society of the parties, the fact that the attack was entirely unprovoked, that the defendant could easily have ascertained that the charge he made was false, &c. So evidence may be given to show that the defendant was culpably reckless or grossly negligent in the matter. The attention of the jury should especially be directed to the mode, the extent, and the long continuance of publication. Such evidence is admissible with a view to damages, although the publication has been admitted on the pleadings. (Vines v. Serell, 7 C. & P. 163.) So defendant's subsequent conduct may aggravate the damages; e.g., if he has refused to listen to any explanation, or to retract the charge he made, or has only tardily published an inadequate apology. It must not be assumed, however, that every piece of evidence which is admissible to prove malice when malice is in issue (see c. IX.), is also admissible in aggravation of damages. Thus evidence may be given of antecedent or subsequent libels or slanders to show that a communication primâ facie privileged was made maliciously (c. IX., p. 276); and also when evidence is necessary to explain the meaning of language which without it appears ambiguous (c. III., p. 113). But such evidence may not be given where the existence of malice is undisputed, and the words of the libel are clear. (Stuart v. Lovell, 2 Stark. 93; Pearce v. Ornsby, 1 M. & Rob. 455; Symmons v. Blake, ib. 477; 2 C. M. & R. 416; 4 Dowl. 263; 1 Gale, 182.) And when such evidence is admissible, the jury should always be cautioned to give no damages in respect of it. (Per Tindal, C. J., in Pearson v. Lemaitre, 5 M. & Gr. 719; 12 L. J. Q. B. 253; 6 Scott, N. R. 607; 7 Jur. 748; 7 J. P. 336.) It is only when a subsequent libel has immediate reference to the one sued on, that it will be admitted as a necessary part of the res gesta. (Finnerty v. Tipper, 2 Camp. 72; May v. Brown, 3 B. & Cr. 113; 4 D. & R. 670.) The plaintiff cannot give evidence of general good character in aggravation of damages merely, unless such character is put in issue on the pleadings; or has been attacked by the cross-examination of the plaintiff's witnesses; for till then the plaintiff's character is presumed good. (Cornwall v. Richardson, Ry. & M. 305; Guy v. Gregory, 9 C. & P. 584, 587; Brine v. Bazalgette, 3 Ex. 692; 18 L. J. Ex. 348.) But such evidence is admissible under special circumstances to show that the libel was false to the knowledge of the defendant, and must therefore have been written maliciously. (Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455, post, p. 569.) |