Francis H. (Francis Hermann) Bohlen.

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inally pertaining exclusively to the Common Pleas. Upon this principle the
common-law courts may have worked in wresting from the spiritual courts
jurisdiction over defamation.

Upon this assumption the various classes of actionable words may be
explained. Take the accusation of crime. A court of law having jurisdiction
of the offence charged for the purpose of punishing the offender, this juris-
diction might well be held to draw after it as an incident the right to in-
vestigate the charge for the purpose of compensating the party defamed if
the charge was false. But to give this jurisdiction the imputation must^ be
direct — a crime must be charged. One might suffer as much in reputation
and pecuniary damage from being called a thievish knave as from being
called a thief. But to call one a thievish knave imputes only a disposition to
commit a crime, not a crime committed; and as there is nothing to which the
jurisdiction of the court can attach, such an accusation is not actionable in
the common-law courts.

The fact that it is actionable to impute that one is suffering from leprosy,
syphilis, or the plague, while it is not actionable to charge a person with
having any other disease (and not actionable to impute having had those
specified), may be accounted for in the same way. In early times, when a
person became afflicted with leprosy he was deemed to be legally dead and
lost the privileges of citizenship. The Church took the same view, and, on
the day when the sufferer was consigned for life to a lazar-house, performed
over him the various solemn ceremonies observed in the burial of the dead.
As the leper was subject to the writ dc leproso amovcndo, the accusation of
leprosy as well as the accusation of crime might be held actionable, and
upon the same ground. Persons suspected of having the plague were like-
wise removed by law to pest-houses and confined. To account for the
charge of having syphilis is more difficult. Whether upon the appearance
of this disease, in the fifteenth century, it was regarded as contagious, and



790 HELLWIG V. MITCHELL.

SO exposed the sufferer to a writ like the writ de leproso, or whether the
disease was so similar in its outward manifestations to the form of leprosy
then prevalent in England, can only be conjectured. It was a disease quite
prevalent among the clergy, and there is abundant evidence to show that it
was considered no more disgraceful than any other severe disorder.

The earlier cases with respect to defamatory words touching a person
in his office or means of livelihood relate almost altogether to the adminis-
tration of justice. It would not be difficult to bring the slander of a judge
within the jurisdiction of the common-law courts. Words spoken of an
attorney, of which there are several early cases, likewise touch the adminis-
tration of justice. To call a merchant a bankrupt was to subject him to the
statute of bankruptcy, and might be held actionable upon the same principle
as the accusation of crime. That pecuniary loss was the gist of the action,
or that damage to a man's business would itself furnish a ground of action
in a temporal court, appears to be an idea which originated after the ec-
clesiastical courts had lost their power. It is founded upon the idea that
everything relating to money or business is temporal, as pertaining to mat-
ters of this world."



(a) Words imputing the commission of certain crimes.



HELLWIG V. MITCHELL.
King's Bench Division, 1910. L. R. 1910 1 K. B. 609.

Case set down in the special paper for argument as to whether
the statement of claim disclosed any cause of action.
, The statement of claim was as follows :

"(i). The plaintiff is a hair dresser carrying on business at
37 Walbrook, in the city of London, and residing at No. ly Cots-
wold Road, Westcliff, in the county of Essex. The defendant is
the manager of the Palace Hotel, Southend, in the said county of
Essex.

"(2). On November i, 1909, at the aforesaid Palace Hotel,
the defendant falsely and maliciously spoke and published of and
concerning the plaintilf to one Aubrey Bagnald, to one Frank Bag-
nald, and to divers other persons then present in the said hotel, but
whose names are not known to the plaintiff, the words following,
that is to say : "I cannot have you in here ; you were on the premises
last night with a crowd, and you behaved yourself in a disorderly
manner and you had to be turned out." Upon the plaintiff protest-
ing that the defendant had made a mistake and that he (the plain-
tiff) was not in Southend on the previous evening, the defendant
further said in the aforesaid circumstances : — "Oh, no, I have not
made a mistake, and there are plenty of people here now who saw
you and the disorderly way in which you behaved; you have to go
out at once ; and if you don't go I shall call in the police, and have
you turned out."



HELLWIG V. MITCHELL. 791

"(3). By the said words the defendant meant and ^yas under-
stood to mean that the plaintilt had been guiUy of disorderly con-
duct, of committin,','- breaches of the peace and refusing to quit
hcensed premises, having thereby committed criminal offenses, and
that he was not a fit i)erson to associate with respectable people and
was incapable of behaving in a rational or decent manner.

"(4). By reason of the premises the plaintiff has been held up
to public ridicule, odium, and contempt, and has suffered damage
to his credit and rcinitation.

"The plaintiff' claims £250 damages."

Br.\y, J. This case is by no means free from doubt. The ques-
tion is whether the statement of claim discloses any actionaljle
wrong. In the absence of special damage slander is only action-
able in certain cases, one of which is wliere the words impute the
commission of a criminal off'ense punishable by imprisonment. The
first point taken on behalf of the plaintiff is that the words alleged
in the statement of claim are capable of meaning that the plaintiff
was a partv to an unlawful assembly, which is an offence punish-
able with imprisonment. I do not think that without some special
innuendo and special evidence the words convey an imputation of
that sort, but it may be that, if there had been a special innuendo
pleaded, that the words meant that the plaintiff had been a party
to an unlawful assembly. I might have thought that there was a
question for the jury. The actual innuendo pleaded in the state-
ment of claim does not, in my opinion, allege that the plaintiff" had
been guilty of being a party to an unlawful assembly.

It was next said that the slander imputed to the plaintiff' that
he had been guilty of being drunk and disorderly, which is an offence
punishable with imprisonment. But there is not a word in the slan-
der imputing drunkenness to the plaintiff', and the words are not
capable of bearing that meaning, nor is that meaning alleged in the
innuendo. Therefore both these points fail.

Lastly it was contended that the words are capable of bearing
the meaning alleged, namely, that the plaintiff had been guilty of
disorderly conduct and of committing breaches of the peace, and it
was said that a person who commits a breach of the peace may be
arrested either by a private individual or by a constable. That is
true, but the offence is not punishable by imprisonment. It was
contended, however, that the rule does not require that the criminal
offence should be one punishable by imprisonment, and that it is
sufficient if the offence be one which renders the oft'ender liable to
summary arrest and detention. This is not a question of principle,
but of judge-made-law, and therefore I must look at the authorities
to see how far they support this contention. The first case to which
I will refer is Webb v. Bcavan, ii O. B. D. 609, in which the court
had to consider the question whether it is necessary to allege that
the words impute an indictable oft'ence, and it was held that it was
not necessary. Pollock, B., in giving judgment said: "The ex-
pression 'indictable offence' seems to have crept into the text-books,
but I think the passages in Comyn's Digest are conclusive to show



jp2 HELLWIG Z'. MITCHELL.

that words which impute any crimnal offence are actionable per sc.
The distinction seems a natural one, that words imputing that the
plaintiff has rendered himself liable to the mere infliction of a fine
are not slanderous, but that it is slanderous to say that he has done
something for which he can be made to suffer corporally." Those
last words are, undoubtedly, somewhat ambiguous and may be wide
enough to include an offence which, though not punishable by im-
prisonment, renders the offender liable to arrest. The judgment of
Lopes, J., in IVebb v. Beavan, does not carry the matter any further.^
The next case is Michael v. Spiers & Pond, Ltd., 25 Times L.^ R.
740, where it was contended by counsel for the plaintiff that "the
joint effect of § 12 of the Licensing Act, 1872, and § 5 of the Sum-
mary Jurisdiction Act, 1879, was to make drunkenness on licensed
premises an oft'ence which exposed the person committing it to
punishment corporally. The plaintiff under § i of the Licensing
Act, 1902, was liable to be dealt with corporally on the spot, and
therefore this was a slander which was actionable per se." It ap-
pears, therefore, that the argument which has been raised here was
also raised in Michael v. Spiers & Pond, Ltd., but A. T. Lawrence,
J., apparently did not find it necessary to decide the point, for he
held that there was no imputation of an offence within § i of the
Licensing Act, 1902, but he used these Avords : "As, therefore, there
is no imputation of an indictable offence or of an offence for which
a person can be made to suft'er corporally by way of punishment, I
think special damage is necessary." That is a dictum that the cor-
poral suffering must be by way of punishment. I cannot^ find in
the books a trace of authority for saying that words imputing that
the plaintiff has done an act for which he may be arrested, but which
is only punishable by a fine, are actionable without proof of special
damage, or that a mere liability to arrest is sufficient to make the
crime one for which the offender can be said to suffer corporally.
Strictly speaking, it is incorrect to say that a person who commits
a breach of the peace can be made to suffer corporally. The arrest
in that case is not a punishment ; it is merely a method of prevent-
ing the continuing of the offence.

I am of opinion that it is not desirable to extend the list of
actionable wrongs, and for the reasons which I have given I come
to the conclusion that the statement of claims discloses no actionable
wrong, and the action must therefore be dismissed with costs.

Judgment accordingly. -



^The judgment of Lopes, J., was as follows:—"! think it is enough that
the words complained of impute a criminal offense. A great number of of-
fenses, which w^ere dealt with by indictment twenty years ago, are now dis-
posed of summarily, but the effect cannot be to alter the law in respect to
actions of slander."

-Accord: Elliott v. Ailsberry, 2 Bibb 473 (Ky. 1811) ; a charge of forni-
cation held not actionable because only punishable by fine, B^ick V. Hcrsey,
31 Maine 558 (1850), accusation of drunkenness, but see Shepherd v. Piper,
note 3 to Davis v. Carey, post. In Vermont the offense charged, in addition
to being punishable corporally, must involve moral turpitude, Redway v. Gray,
31 Vt. 292 (1858), qualifying Billings v. Wing, 7 Vt. 439 (1835) ; and Mur;\-y
V. McAllister, 38 Vt. 167 (1865). In Maryland and Missouri it must be bc.h




D.WIS TT CARlilY. 793

DAVIS v. CAREY.
Court cf Common Pleas of Chester County. 1891. 141 Pennsylvania St. 314.

Opinion, Mr. Justice Clark:

The plaintiff, Thompson Davis, was the owner of a three-story
stone merchant .S2:ris't mill, situate in Schuylkill township, Chester
County. The mill was insured in the Mutual Fire Insurance Com-
pany of Chester County in the sum of $2,500, and in the ^tna Fire
Insurance Company in the sum of $5,000. Whilst thus insured, on
March 13, 1889, the mill was destroyed by fire. The defendant,
Peter G. Carey, is the accent of the first named company, and is one
of the manao:ers and adjustisrs thereof.

In the plaintiff's statement of claim it is char<^ed that about the
first day of June, 1889, and at various other times, the defendant
charged the plaintiff with setting fire to and burning the mill, to
defraud the insurance companies. If the words uttered weix artinn -
able infliomsaiLe^- with out proof of special damage , thetestimony
"wng^fTjT^d nnt to send the rase to tl i g Jury . The charge was that
'lie hadbunicd the mill himself ;1that he could not have chosen a
better day ; that it was beyond doubt he had burned the mill ; and,
taking these expressions in the connection in which they were made,
they were open to the implication that he had burned the mill to
defraud the insurance companies. The court having given per-
emptory instructions to find for the defendant, the truth of the testi-
mony adduced by the plaintiff, with all reasonable inference there-
from, must be assumed. But the learned judge of the court below
was of opinion they were not actionable, and upon that ground gave
peremptory instructions to find for the defendant.

Upon the question what words containing the imputation of a
crime are actionable, without proof of special damages, the cases
in this court are in some apparent confusion. They are not con-
tradictory. The course of decision is entirely consistent; the con-
fusion arises from what has been said, not what was decided. The
cases are in accord that such words are not actionable unless they
import an oft'cnce indictable and punishable, either at the common



indictable and punishable corporally, Griffin v. Moore, 43 Md. 246 (18/5);
Birch V. Benton, 26 Mo. 153 (1858).

In North Carolina it is held that the offense imputed must subject the
offender to an infamous punishment, Skinner v. White, 1 Dev. & Batt. 471
(N. Car. 1836), infamous punishment being one which "involves social degra-
dation by occasioning the loss of the 'libera lex,' Wall V. Hoskins, 5 Ire. 177
(N. Car. 1844). but in McKcc v. Wilson, 87 N. Car. 300 (1882), an m famous
crime is defined to be one, conviction and punishment for which mvolve moral
turpitude and social degradation and it is held that an accusation of a misde-
meanor punishable bv fine or imprisonment is not actionable." See 3.\so. Har-
ris V. Terry. 98 N. Car. 131 (1887). and compare .S"/i7-r// v. Reynolds. 67 Pa.
St. 54 (1870), where a charge of stealing corn was held not to be actionable
per se if it referred to standing corn the taking of which was a misdemeanor
only and not to the taking of corn already cut and so a felony, the punishment
for Which the law regards as infamous.



794




DAVIS t7 CAREY.



law or by statute.^ Harzcy v. Boies, i P. & W^i#, 'J^kehart v.
Byerlx, 53 Pa. 418; but this is not a criterion: Klumph v. Dunn, 65
Pa. 141.

In Miles V. Oldfield, 4 Yeates 423, the words were, "You are a
vagrant.'' It was objected that these words were not actionable, but
this court said: "The act of February, 1767, defines the nature of
vagrancy, and authorizes a justice of the peace to commit vagrants
to the common jail, there to be kept at hard labor for any time not
exceeding one month. To charge a person with an offense which
subjects him to punishment of this kind is, in the opinion of the
court, actionable." This case may, however, be distinguished from
others in this, that it was not only averred in the declaration, but
it was proved, in the nature of a special injury, that in consequence
of the words spoken the plaintiff was apprehended and taken before
the justice of the peace as an idle and disorderly person, and there-
by suffered damage. In Shaffer v. Kintzer, i Bihn. 542, Chief
Justice Tilghman says : "With regard to words which will support
an action of slander, I take the rule to be as laid down by C. J. De-
Grey, in the case of Onslow v. Home, 3 Wils. 186, in the year 1771,
which is an authority in this eourt. They must contain an express
imputation of some crime liable to punishment, some capital offence,

^Accord: Pollard v. Lyon, 91 U. S. 225 (1875) ; Dudley v. Horn, 21 Ala.
379 (1852) ; Kinney v. Hosea, 3 Harr. 77 (Del. 1840) ; Richardson v. Roberts,
23 Ga. 215 (1857) ; Halley v. Gregg, 74 Iowa 563 (1888) ; Mudd v. Rogers,
102 Kv. 280 (1897; ; Hendrickson v. Sullivan, 28 Nebr. 329 (1889) ; Ludlum
V. McCuen, 17 X. J. L. 12 (1839) ; Young v. Miller, 3 Hill 21 (N. Y. 1842) ;
Quinn v. O'Gara, 2 E. D. Smith 388 (N. Y. 1854) ; Davis v. Sladden, 17 Ore.
259 (1889) ; Alfele v. Wright, 17 Ohio St. 238 (1867) ; Lodge v. O'Toole, 20
R. I. 405 (1898) ; Gage v. Shelton, 3 Rich. L. 242 (S. Car. 1832) ; Smith v.
Smith, 2 Sneed 473 (Tenn. 1855) ; Payne v. Tancil, 98 Va. 262 (1900). _

No matter how morally bad or disgraceful the act may be, it is not
actionable unless it be also a crime, indictable as such, Shepherd v. Piper,
98 Maine 384 (1903), accusation of double voting at town meeting called not
for action but merely to give expression to local opinion ; Pollard V. Lyon,
91 U. S. 225 (1875), charge of adultery in the District of Columbia where
adultery is not a punishable crime. Lodge v. O'Toole, 20 R. I. 405 (1898),
plaintiff accused of drunkenness, punishable only under local ordinance,
Greene V. Murdoch, 1 Cal. App. 136 (1905). For cases where \vords were
held not actionable per se because the offense charged, while indictable, did
not involve moral turpitude, see Ludlum v. McCuen, 17 N. J. L. 12 (1839),
and Baxter v. Mohr, 76 N. Y. S. 982 (1902).

As to what is meant by moral turpitude see Newell on Defamation, 2nd
Ed., § 12, quoted in Baxter v. Mohr, 76 N. Y. S. 982 (1902), but cf. Brooker
v. Coffin, post, and see for criticism of the rule on the ground of its uncer-
tainty, Birch V. Benton, 26 Mo. 153 (1858).

in most American Jurisdictions it is necessary that the offense alleged
should be indictable. See cases cited in note. In Massachusetts and Connecti-
cut and Minnesota it is, however, enough that the offense be one punishable
criminally— with the additional requirement in first state, that the punishmeijr^
for such an offense, though not infamous, will involve disgrace, Miller v.
Parish, 8 Pick. 384 (1829); Brown v. Nickerson, 5 Gray 1 (Mass. 1855),
in the two latter, that the offense should involve moral turpitude, Page v.
Merwin, 54 Conn. 426 (1887) ; Reitan v. Goebel, 33 Minn. 151 (1885^ : but
see West v. Hanrahan, 28 Minn. 385 (1881), and see also, Ranger v. Good-
rich, 17 Wis. 78 (1863) : Mayer v. Sleichter, 29 Wis. 646 (1872) ; Geary v.
Bennett. 53 Wis. 444 (1881), and Shepherd v. Piper. 98 Maine 384 (1903),
with which compare Buck v. Hcrsey, 31 Maine 558 (1850).



DAVIS I'. CAREV. 795

or other infamous crime or misdemeanor. But in Brown v, Lamber-
ton, 2 Binn. 34, the crime charged was adultery, and in Walton v.
Singleton, 7 S. & R. 449, it was fornication merely.- Xo special
damage was laid in either case, and it was held that the words were
actionahle. To the same effect are Bcirer v. Bnshfield, i W. 23;
J'audcrlip v. Koc, 23 Pa. 82; Klumph v. Dunn, C>6 Pa. 141 ; Rlioads
V. Anderson, 12 Cent. R. 727, 13 Atl. 823. To call a woman a whore
or an adulteress is actionahle, the punishment is not infamous, but
it is actionable, because it is a charge of impurity, depravity, and
moral turpitude.

In Andres v. Koppenheafer, 3 S. & R. 254, the slanderous words
spoken charged the publication of a hl)el, an indictable offence at
the common law, now punishable with fine and imprisonment. Chief
Justice Tilghman, delivering the opinion of this court, said: "But,
supposing the words to imply an indictable offence, it is contended
that stillthey are not actionable, because there is nothing infamous
in the crime of libel. It is laid down by some elementary authors
that all words are actionable which import an offence for which
one is indictable and punishable by fine and imprisonment. I in-
cline to think that this is carrying the matter rather too far. To say
that a man has committed an assault and battery, is charging him
with an offence punishable by fine and imprisonment, but yet no
action of slander has been sustained for such words. It seems tint
there should be something in the offence of an infamous or dis-
graceful nature ; either a felony or a misdemeanor which affects
one's reputation." Mr. Justice Gibson, in the same case said: "In
England the law is broadly laid down that words charging an offence
that would subject the party to punishment by indictment are action-
able in themselves. In Brooker v. Coffin, 5 Johns. 188, the rule is
restrained to a charge that would, if true, subject the party to an



-The accusations were held actionable because they imputed unchastity
of a kind made indictable offenses by statute; see Frisbie v. Fowler, note 1
ante. In other states where it is only necessary that the offenses imputed
shall be punishable, certain charges of unchastity which, while not indict-
able, are punishable bv fine, are held actionable per se. Page v. Mcrwin, 54
Conn. 426 (1887); Miller v. Parish. 8 Pick. 384 (1829): Griebel v. Rcitan;
Mayer v. Schlcichter, 29 Wis. 646 (1872), ante n. 1. Imputations of unchastity
which are neitlier indictable nor otherwise criminally punishable are, in the
absence of express statutes making them actionable, generally held not to bj
actionable per se. Pollard v. Lyon, 91 U. S. 225 (1875) : Elliott v. Ailsberry.
2 Bibb 473 (Ky. 1811) ; Smith v. Gifford, 31 Ala. 45 (1857) ; Ledlie v. Wallcn,
17 Mont. 150 (1895). In Cleveland v. Detweiler, 18 Iowa 299 (1865) ; Cush-
iuq V. Jledermau. 117 Iowa 637 (1902); Barnctt v. JJ'ard, 36 Ohio St. 107
(1880), and Smith v. Minor, 1 N. J. L. 16 (1790), it is held that such acc.i-
sations are actionable irrespective of whether the particular offense is punish-
able or not.

I In manv states imputations of unchastity made against women are by
statute actionable /rr se, Hitchcock v. Caruthers, 82 Cal. S23 (1890) ; Dexter
V. Harrison, 146 111. 169 (1893) ; Waiigh v. IVaugh. 47 Ind. 580 (1874) ; Nich-
olson V. Merritt, 109 Kv. 369 (1900) ; Cairnes v. Pelton, 103 Md. 40 (1906) :
Stieber v. U'ensel, 19 Mo. 513 (1854) : Brown v. jrintsch. 110 Mo. .^pp. 264
(1904) : Hemmens v. Nelson, 138 N. Y. 517 (1893) ; McBraycr v. Hill. 26 N
Car. 136 (1843) ; Hackett v. Broun, 2 Heisk. 264 (Tenn. 1871); Stewart v.
Major, 17 Wash. 238 (1897).



796 DAVIS V. CAREY.

indictment for a crime involving moral turpitude, or that would
draw after it an infamous punishment. This distinction appears
to me a sound one, and to be founded in reason and good sense.
There is a variety of misdemeanors, to the commission of which
not even the shadow of disgrace is attached by the world, and to
be accused of which would not be likely to induce the vexation of
a prosecution, if the accused were innocent, and, if guilty, he ought
not to complain. I think it unreasonable that a charge of having
committed an nuisance, assault and battery, and the like, should be
held actionable. We have quoted extensively from this case of
Andres v. Koppenheafer because it seems to be the leading case in
Pennsylvania, and contains an exposition of the law which has been
followed in the later cases."

In Todd v. Rough, 10 S. & R. 18, it was held to be actionable,
in a conversation concerning certain boundary trees and allowed
landmarks, to say of the plaintiff that he moved the line and made
a new line ; for, said this court, in a conviction of this otTence, "Not
only would the plaintiff be subject to pecuniary loss, but to loss of
character. The removal of boundaries has always been held in
execration : the curse of God was denounced against it by the Mosaic
law ; the Romans considered it the infamous offence, and all civil-
ized nations have been of the same opinion. The reason of this
general detestation is evident ; without certainty of boundary, there
is no certainty of property in land." In Beck v. Stitzel, 21 Pa. 524,
the plaintiff was or had been one of the administrators of Adam
Stitzel, deceased, but had settled his final account some sixteen years
before the words complained of were spoken. The defendant
charged that the plaintiff, when administrator, "had a room in which
were two beds, and both beds were full of leather which he had
smuggled away at the time of the appraisement." Xo special damage
was averred in the narr, and none was proved ; it was held that the