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Dec., 1904]

Opinion of the Court-CORSON, P. J.

from him, with the further intent to cause it to be believed that the plaintiff was dishonest, and had wronged and cheated the said union, and was unworthy to fill the position of president of the same. And plaintiff prays judgment for damages in the sum therein specified. Of course, for the purpose of this decision, the allegations stated in the complaint must be assumed to be true.

It is contended by the appellant (1) that the alleged libel does not name any person; (2) that there is no statement in the alleged libel that any committee or officer paid more for the piano than it was worth, by reason of being bribed; (3) that the alleged libel does not charge a crime or any public offense.

"Libel" is defined in the Civil Code of this state as follows: "Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Section 29, Civ. Code. This section is a verbatim copy of section 29 of the Civil Code proposed by the commissioners of the state of New York, and the commissioners evidently intended to embody in the section the common law as laid down in the following authorities referred to in their note to the section: 2 Kent, Comm. 17; Steele v. Southwick, 9 Johns. 214; Cooper v. Gree ley, 1 Denio 347; Stone v. Cooper, 2 Denio 293. The case of Cooper v. Greeley, supra, may be regarded as the leading case upon the subject of libel in New York; and, as the questions presented are very fully considered and discussed in that case, we deem it proper to quote at some length from the opinion, to enable us to give a proper construction to the section. The

Opinion of the Court-CORSON, P.J.

[19 S. D

court, in its opinion in that case, says: "The iuquiry is, how

, is this publication to be understood ? It is the duty of the court, in an action for a libel, to understand the publication in the same manner as others would naturally do. The construction which it behooves the court of justice to put on a publication which is alleged to be libelous is to be derived as well from the expressions used, as from the whole scope and appar. ent object of the writer.” Certainly in the case at bar the article would be understood by the residents of Lead City as referring to the president and trustees of the miners' union. The fact, however, that no name was mentioned in the article, does not render it the less libelous, so long as it would be under: stood to refer to the officers who were authorized to purchase the piano. There is no merit, therefore, in the contention that the plaintiff was not specifically named in the article. But whether or not the article referred to the plaintiff is a question for the jury. In speaking of that subject, that court says: "The question whether the alleged libel was published of and concerning the plaintiff, and whether the true meaning of the words is such as is alleged in the innuendo, or not, is a question of fact, which belongs to the jury, and not to the court, to determine.” The court in the opinion further says: "The proposition of the defendant's counsel, that, to render a publi. cation actionable, it must impute a crime, cannot be sustained. This rule has never been extended to libels in this state, nor has it been in England for the last one hundred and fifty years. The first action for a libel found in our books of reports is that of Riggs v. Denniston [3 Johns. Cas. 205, 2 Am. Dec. 145], be. fore cited, which was decided in 1802. The late chancellor (then Mr. Justice KENT), delivering the opinion of this court,

Dec., 1904)

Opinion of the Court-CORSON, P. J.

observed that the charges against the plaintiff were clearly li. belous, because they threw contumely and contempt upon him in his character as a commissioner of bankruptcy, instead of holding them actionable as subjecting the plaintiff to the loss of his office. And such has been the doctrine of this court from that time to the present.” In Van Ness v. Hamilton, 19 Johns. 349, Mr. Justice SPENCER said: “It may, however, be observed, in the outset, that there exists a decided distinction between words spoken and written slander. To maintain an action for the former cause, the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offense, involving moral turpitude. To maintain an action for a libel, it is not necessary that an indictable offense should be imputed to the plaintiff. If a libel holds a party up to public scorn, contempt, and ridicule, it is actionable." It is insisted by the defendant's counsel that in the early stages of the law of libel there was no distinction between written and verbal slander, and that no action could theu have been maintained for any words written for which an action could not be maintain ad if they were spoken. The case of Thorley v. Lord Kerry, 4 Taunt. 355, decided in the Exchequer Chamber in 1812, is, among other cases, relied on to sustain that position. Sir J. Mansfield, C. J., in delivering the opinion of the court, stated that the words, had they merely been spoken, would not have beer actionable; and, wbile he disproved of the distinction which he admitted had prevailed for inore than a century past between written and spoken scan

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Opinion of the Court-CORSON, P. J.

[19 S. D.

dal, he said that as the rule and distinction had been so firmly established by some of the greatest pames known to the law, and from a time at least as far back as the time of Charles II, he could not venture to lay down at that day that "po action could be maintained for any words written for which an action could not be maintained if they were spoken.” The court then quotes with approval the following from Starkie on Slander, vol. 1, p. 169: “Upon the whole, it may be collected that any writings, pictures, or sigos which derogate from the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comfort by exposing him to disgrace and ridicule, are actionable without proof of special damage; in short, that an action lies for any false, malicious, and personal impulation effected by such means, and tending to alter the pariy's situà. tion in society for the worse.” And the court concludes: ...It does not appear

that individual character is more than adequately protected by the legal remedies, civil and criminal, which the law, as it has been established for the last century and a half, both in England and in this country, affords. If this court were competent to repudiate a distinction so well settled as that between written and spoken scandal, public policy would * * interpose to prevent it.” It will be noticed, by section 30 of our Code, that this distinction between libel and slander has been preserved.

It is further contended by the appellant that assuming that the language of the alleged libelous article was intended to apply to the plaintiff as president of the miners' uniun, and one of the committee authorized to purchase the piano, still the charge made against him is not of such a character as to con

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Dec., 1904)

Opinion of the Court—CORSON, P. J.

stitute a libel, without averments of special damage, and that therefore the complaint does not state facts sufficient, in any event, to constitute a cause of action. This contention, in our opinion, is untenable. In Stone v. Cooper, decided by the Court of Errors of the state of New York, 2 Denio 293, referred to by the commissioners, that court, speaking through Chancellor WALWORTH, in discussing the question of what con: stitutes a libel per se, uses the following language: "But to sustain a private action for the recovery of a compensation in damages for a false and unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from the publication of the matter charged against him, or the nature of the charge itself must be such that the court can legally presume he has been degraded in the estimation of his acquaintances or of the public, or has suffered some other loss, either in his property, character, or business, or in his domestic or social relations, in consequence of the publication of such charge. Where, from the nature of the charge, therefore, in connection with other facts stated in the plaintiff's declaration, no such injury or loss will necessarily or even probably result to him in consequence of the pub. lication of such charge, he cannot recover damages as for a libel without averring and proving that special damage has been in fact sustained by him in consequence of the publication of the false and unfounded charge.” Tested by the rule laid down in that case, we are of the opinion that it does affirmatively appear from the alleged libelous article that the court might properly presume that the plaintiff was degraded in the estimation of his acquaintances and members of the miners' union and the residents of Lead City by reason of the charge

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