Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 113 of 124)
Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 113 of 124)
Font size
QR-code for this ebook

"having a natural tendency to," and are confined within the limits,
I have expressed in stating the defendant's objections, of showing
the want of some necessary qualification, or some misconduct in
the office, it goes* beyond v/hat the authorities warrant.

Every authority which I have been able to find, either shows
the want of some general requisite, as honesty, capacity, fidelity,
&c., or connects the imputation with the plaintiff's office, trade, or
business. As at present advised, therefore, I am of opinion, that
the charge proved in this case is not actionable, because the imputa-

^ This includes every trade, profession or business, "be it ever so base"
fbasc being used in the sense of lowly, not illegal or improper), Terry v.
Hooper, 1 Levinz 115 (15 Car. II) ; but see the early cases of Jones v. Joice,
Viners Abr., Action on Words U a 7; Wharton v. Brook, 1 Vent. 21 (21
Car. II), per Twisden, J.; and Bell v. Thatcher, 1 Vent. 275 (27 C. TI), per
Hale, J., holding or intimating that the callings of livery stable keepers,
.'■"chool mistresses, postmen and domestic servants were too humble to be
c:;pable of being scandalized.

No one can recover for words touching him in an illegal trade, Hunt v.
Bell, 1 Bing. 1 (1822), keeper of rooms for prize-fights; Morris v. Langdah,
2 B. & P. 284 (1800). illegal stock jobbing; Hargan v. Purdy, 93 Ky. 424
ri892). person practicing medicine without right; Marsh v. Davison, 9 Paige
580 (N. Y. 1842); Johnson v Simonton, 43 Cal. 242 (1872), action of libel
touching illegal trade.


tion it contains does not imply the want of any of these quahtie"
which a clerk ought to possess, ana because the imputation has no
reference to his conduct as clerk.

Rule discharged.^

Superior Court of t',:e City of New York, 1847. 1 Sandford 155.

Action of slander.

Vandkrpokl, J. It cannot be pretended that the words proved
to have been spoken by the defendant, are actionable, per se ; but it
is contended, that they convey an imputation affecting the business

' So it has been held that to say of a staymaker that he was supported
not by his trade but by the prostitution of his female assistant, was not
actionable, Brayne v. Cooper, 5 M. & W. 249 (1839). In Ayre v. Craven,
2 \. & E. 2 (1834), a charge of adultery against a physician, unconnected
with the practice of his profession, was held not actionable; but see Alder-
son, B. arguendo in Callwcy v. Marshall, 9 Exch. 294 (1853), p. 297, "There
are certain professions, the proper exercise of which depends on morality,
and except for the case of Ayre V. Craven, I should have thought the pro-
fession of a physician was one of them;" and Morasse v. Brochu, 151 Mass.
567 (1890), where a Catholic priest, having stated from the pulpit the cir-
cumstances of 3. physician's remarriage, excommunicated him from the church
and said that any members of the church employing him would forfeit the
ministrations and sacraments of tiie church in case of their illness, it was held
that it was for the jury to say whether these statements touched the plaintiff
in his profession; so in Connors v. Justice, 13 Jr. C. L. 451 (1862), chastity
was held to be so essential in a female servant, that a charge that she was
debauched and had a miscarriage while in service was held to be action-
able per se.

To charge a clergyman or minister with drunkenness is actionable per se,
McMillan v. Birch, 1 Einn. 178 (Pa. 1806) ; llaxner v. Cowdcn, 27 Ohio St.
292 (1875); Tighe v. Wicks, Z2, Upper Can. Q. B. 479 (1873) contra: or
even with a single act of serious drunkenness, Chaddock v. Briggs, 13 Mass.
248 (1816) ; or to charge a schoolmaster with habitual drunkenness, though
not with being drunk on a single occasion, 1 Vict. L. R. 306 (1875) ; see
Bray v. Callihan, 155 Mo. 43 (1900). Where the plaintiff's business re-
quires strict sobriety, as that of a master of a vessel, or general man-
ager of a railroad, it is actionable to accuse him of habitual drunkenness
or of specific acts of drunkenness while on duty; Irwin v. Brandwood,
2 H. & C. 960 (1864) ; Ramon v. Falle, L. R. 4 A. C. 247 (1879) ; Kellv
V. Huffington, 3 Cranch C. C. 81 (D. C. 1827); Broughton v. AfcCrew, 39
Fed. 672 (C. C. 1889); Gottbchuct v. Iliibachck, 36 Wis. 515 (1875), Chief
of Fire Department accused of being drunk at a fire.

The law in regard to priests, clergymen, licensed ministers and preachers
is peculiar. As late as Eliz. 38, 39, it was held that to accuse a parson of
adultery, though a cause of deprivation if true, was a slander examinable
only in the spiritual courts, but see Nicholson v. Lyne, Cro. Eliz. 94 (1587),
but in 1648 it was held a slander cognizable in the King's Courts to accuse a
parson of being a whoremaster, Dod v. Robinson, Alcvn 63 ; Accord. Dcmarcst
v. Ilaring, 6 Cow. 7b (.\. Y. 1826) ; Ritchie v. Wi'ddemer, 59 N. J. L. 290
(1896), or any conduct which would unfit him for his office or be ground for
depri\-ation, P ember ton v. Colls, 10 Q. B. 461 (1847), accusation that the
plaintiff, a clergyman, had drugged the defendant's wine and so fraudulently
induced him to sign a bill of exchange, Philip v. Badby (1582), cited in 4
Rep. 19, preaching seditious sermons; Crandcn v. JValden, 3 Lev, 17 (1681).
preaching lies and malice; in Gallwey v. Marshall, 9 Exch. 294 (1853), it


of the plaintiff, and are, therefore, actionable. It is a well estab-
lished rule, that words are actionable, which directly tend to the
prejudice of any one, in his office, trade, business, or means of get-
ting a livelihood. {Onsloiv v. Home, 3 Wilson 186; Stark, on
Sland. 180.) The words, to be actionable, because they injure one
in his business, must have a direct tendency to produce this ejtect.
They must relate to his business character. In Dorlcy v. Roberts
.(3 Bing. N. C. 835), it was said of an attorney, "he has defrauded
his creditors, and has been horsewhipped off the course at Don-
caster." The jury found that the words tended to injure the plain-
tiff morally and professionally, but they also found they were not
spoken of him in his business of an attorney; and for that reason,
the court ordered a nonsuit. Tindal, Ch. J., said, the words, though
spoken of an attorney, do not touch him in his profession, any more
than they would touch a person in any other trade or profession.
So here, though the words were spoken of a man, who happened
to keep a public garden and house of entertainment, they did not
touch or affect him, more than they would have touched or affected
a person in any other business or profession.^ In Soutliam v. Allen
(3 Salk. 327; Raym. 231) the plaintiff declared that he was a keeper
of a livery stable, and of the Bell Savage Inn, and that the defend-
ant had other stables there, and that W. R., coming thither with a
wagon, inquired of the defendant, which was the Bell Savage Inn,
who replied, "this is Bell Savage Inn, deal not with Southam (the
plaintiff), for he is broke, and there is neither entertainment for
man or horse." After verdict for the plaintiff, the judgment was
affirmed. This was a charge that came directly home to the busi-
ness of the plaintiff. But to say of a man, 'T am afraid to go to
his house alone." "He is a desperate man." "He is a dangerous
man." "I am afraid of my life ;" is no more calculated, directly to

was held that a charge of incontinency against one in holy orders was ac-
tionable slander in the temporal courts if, and only if, he held some benefice
or clerical post of profit, otherwise the slander was cognizable only in the
spiritual courts; but see McMillan v. Birch, supra, where the plaintiff was
allowed to recover, though ordained only in the Scottish church and not en-
titled to exercise his profession without a license from the local church;
Skinner v. Grant, 12 Vt. 456 (1840), charge of heresy which in England is
cognizable only in the spiritual courts.

As to the status in England and its colonies of dissenting preachers, see
Hartley v. Herring, 8 T. R. 130 (1799), when special damage was alleged;
and Hopword v. Thorn, 8 C. B. 293 (1849), where the charge was of dis-
honesty occurring before the plaintiff entered the ministry; and Breeze v.
Sails, 23 U. C. Q. B. 94 (1863), where the rule in Ayre v. Craven was car-
ried to the ridiculous extreme of holding that a Methodist preacher, actually
deriving profit from his calling, could not recover without proof of special
damage against one who had accused him of keeping company with a prosti-
tute; sec also Tighe v. Wicks, Z2 U. C. Q. B. 479 (1873), where a charge of
drunkenness against a clergyman of the Church of England was held not to
be actionable.

^ So as to say of a keeper of a restaurant, "you are an infernal rogue and
swindler" was held not to be actionable in Brady v. Yoiilden, Kerford &
Box's Digest of Victoria Cases 709, for as the court remarked, "in fact there
might be very successful restaurant keepers, who were both rogues and


affect his business as keeper of a house of entertainment, than to
prejudice his business as a merchant, a baker, or a blacksmith. All
general imputations upon the morality or integrity of men, if be-
lieved by those who hear them, may possibly prejudice the business
interests of those of whom they are spoken ; but the law has not
yet been so prolific of slander suits, as to say, that such general
ebullitions, charging no crime, and pointing to no profession or
means of livelihood, shall form the legitimate foundation of an
action for defamation. Words, to be actionable, as affecting the
plaintiff's business, must charge some delinquency in connection
with such business. In the late case of Van Tassel \: Capron (i
Denio 250), it was expressly held, that where words ire actionable,
only on account of the official or professional character of the plain-
tiff ; it is not enough that they tend to injure him in his office or
calling, but they must relate to his official or business character, and
impute misconduct to him in 'that character. As the words here
are not actionable in themselves, and do not relate to the business
of the plaintiff", the nonsuit was properly granted.-


Supreme Court of New York, 1845. 1 Denio 250.

Declaration for verljal slander.

Bronson, Ch. J. It is not necessary to consider the questions
of form which have been made ; for I am of the opinion that the
declaration is bad in substance. It is the privilege of the vulgar to
use coarse and abusive language; and no action will lie for calling
a man such opprobrious names as liar, cheat, rascal, swindler,

- It is not actionable to say of a livery stable keeper, "you are a prover
under bankruptcies," since it does not impugn his fitness for his calling or the
possession of any quality specially required therein, Angle v. Alexander, 7
Bing. 119 (1830) ; nor to say of a stay maker that he gets his living not from
his trade but from the prostitution of his shopwoman, Braync v. Cooper, 5
M & W. 249 (1839) ; nor to say of a stone mason that he is the ring leader
of the nine-hour svstem, Miller v. David, L. R. 9 C. P. 118 (1874) ; nor to say
of a barnman, that he left his landlord's house owing a month's rent, iipcake
V. Htighcs, L. R. 1904 1 K. B. 138; or to inform the owner of a business that
his manager will not pav a debt, Standard v. Wilcox, etc., Co., 118 Md. 151
(1912), 42 L. R. A. (N. S.) 515, with note, and Nichols v. Daily Rep. Co., 30
Utah 74 (1905) : or to call a justice of the peace a rogue, Dole v. Van
Rensselaer, 1 Johns. Cases 330 (N. Y. 1800) ; or to say of a lawyer that 4
his wife procured a miscarriage upon herself, Wclhnan v. Sun Printing
Co., 66 Hun 331 (N. Y. 1892) ; or that he has sent out "an enticmg arti-
cle" asking subscriptions to a business corporation organized by him, Keene
\: Tribune Assn., 76 Hun 488 (N. Y. 1894); or to speak of a white
clergyman in a slave state as a free negro, McDowell v. Bozulcs, 53 N. Car.
184 (I860) ; or to accuse a lawver of not paying a debt not stated to be owing
to a client, Van Epps v. Jones, 50 Ga. 238 (1873) ; or to accuse a physician
of being a "white capper", i. e. one who posts anonymous defamatory
placards in public places, Divcns v. Meredith, 147 Ind. 693 (1896). In .fames
V. Brook, 9 Q. B. (A. & E. N. S.) 7 (1846), it was held that a statement that "a
member of the Leeds police force" (meaning the plaintiff, the superintendent


blackleg and the like. Xor will such words be actionable though
spoken of one who holds an office, or exercises some trade or pro-
fession, unless they are spoken of, and touch him in his office or
calling. It is not enough that the words may tend to injure him m
his office or calling, unless they are spoken of him in his official
or business character. In Oakley v. Farrington (i John. Cas. 129),
the plaintiff was a justice of the peace, and the words were, "Squire
Oakley is a damned rogue." The plaintiff was nonsuited on the
ground, that although the words were spoken of a magistrate, they
had no relation to his official character or conduct. In Ayre v.
Craven (2 Ad. & Ellis, 2) the words were said to have been spoken
of the plaintiff in his profession as a physician, and imputed
adultery. After verdict for the plaintiff, the judgment was ar-
rested. The court said, that after full examination of the authorities,
they thought the declaration ought not merely to state that such
scandalous conduct was imputed to the plaintiff in his profession,
but also to set forth in what manner it was connected by the speaker
with that profession. Chief Baron Comyn says, "Words not ac-
tionable in themselves, are not actionable when spoken of one in an
office, profession or trade, unless they touch him in his office," &c.
(Action upon the case for Defa. D. 27) This doctrine was fully
approved in Dorley v. Roberts, (2 Bing. N. C. 835,) where it was
said of an attorney, that "he has defrauded his creditors, and has
been horsewhipped off the course at Doncaster." The jury found
that the words had a tendency to injure the plaintiff morally and
professionally ; but they also found that the words were not spoken
of him in his business of an attorney. And for that reason the
court ordered a nonsuit. Tindal, C. J., said, the words, though
spoken of an attorney, do not touch him in his profession, any more
than they would touch a person in any other trade or profession.
In Dole V. Van Rensselaer, (i John. Cas. 330,) the words were
spoken of the plaintiff in his office of sheriff, and affected him in
his official character.

Now what is this case? The words do not charge the plaintiff
with doing any act whatever — either good or bad — as a justice of
the peace. Nor do they impute to him the neglect or refusal to
perform any duty incumbent upon him as such officer. Saying that
"there is a combined company here to cheat strangers, and Squire

thereof) had been guilty of conduct unfit for publication, was not actionable.
See also, Oram v. Franklin, 5 Blackf. 42 (Ind. 1838), where it was held not
to be actionable to accuse a justice of the peace of corruption in a trial held
by him in a matter over which he had legally no jurisdiction.

In actions of slander for accusations touching the plaintiff in his busi-
ness, trade or profession, great precision in pleading is required. The decla-
ration must especially aver that the plaintiff is carrying on the business, etc.,
Cassavoy v. Pattison. 93 App. Div. (N. Y.) 370 (1904), and that the alleged
slanderous words were spoken in relation thereto. Buck v. Hersey, 31 Maine
558 (1850), and where the business or trade is not a usual one, so that the
court may take judicial notice of the qualities required for its successful
prosecution, it must set these forth so that it may appear how the accusation
impugns the plaintiff's fitness for such business or trade, Foulger v. New-
comb, L. R. 2 Ex. 327 (1867).

CAMP t'. MARTIN. 809

Van Tassel has a Iiand in it," does not impute this misconcUict to
liim as a magistrate; but only as a man. "Squire" is merely a de-
scription of the person. It means no more than would be signified
by the use of the plaintifif's baptismal name in the same place. In
Oakley V. Farri]igton, the plaintiff was a justice of the peace, and
the words were, "Squire Oakley is a damned rogue ;" and yet it was
held that the action would not lie, because the words did not relate
to his official character or conduct.

What other delinquency is charged upon the plaintiff? The
words are, "I don't see why Squire Van Tassel did not tell me that
the execution had not been returned in time, so that I could sue the
constable and his bail." It can hardly be said that these words
impute the neglect of any moral or social duty ; for it is not charged
that the plaintiff' had ever been requested to give information on
the subject, or that there had been any opportunity to give it. In-
deed, it does not appear that the plaintiff had any information to
impart. But if the words contain an implied censure on the plain-
tiff as a man, they do not touch him in his official character. They
do not impute to him the neglect of any duty j)ertaining to, or im-
posed by his office. The word "Squire" in this connection means
no more than it did when speaking of the "combined company to
cheat strangers." It is merely a dcscript'w personae, I do not see
how this action can be maintained.

Judgment for defendant.^

Supreme Court of Connecticut, 1854. 23 Conn. Reports, 86.

The plaintiff', who was a physician, brought his action of slan-
der, against the defendant, which was tried at the term of the su-
perior court holden at Litchfield, in November, 1853.

The declaration contained two counts. In the first, the plaintiff
averred that the defendant, falsely, wickedly and maliciously, spoke.
of and concerning the plaintiff, in his profession of a physician, and
of and concerning his treatment, and professional attendance, the
false, scandalous and malicious words following, via. : "If Dr. C

^Accord: Gilbert v. Field, 3 Caines 329 (N. Y. 1805); VanEpps v.
Jones, 50 Ga. 238 (1873); statement that plaintitT, a lawyer, had refused to
pay a draft, the fact that the draft was draw-n on him by a client for money
collected for him not being mentioned; Curry v. Collins, 2i7 Mo. 324 (1866) ;
McCalluni v. Lanibic, 145 Mass. 234 (1887), seniblc : and see Sincdlev v.
Soule. 125 Mich. 192 (1900) ; and Cassaroy v. Pattison, 93 App. Div. (N."Y.)
370 (1904).

Even imputations of insolvency or of other matters seriously affecting
his credit spoken of a trader, are held in Rcdzcay v. Gray, 31 Vt. 292 ( 1858) ;
Barnes V. Trundy, 31 Maine 321 (1850) ; and Dallavo v. Snider, 143 Mich.
542 (1906), not actionable per sc. unless it was alleged and proved that
they were spoken of and concerning the plaintiff in relation to his business,
though in the last case it is intimated that similar written statements might
be libels upon the plaintiff's business reputation.


had continued to treat her, she would have been in her grave be-
fore this time; his treatment of her was rascally;" meaning, "that
the plaintilT's professional treatment to the said Sarah M. was such
that, had it been continued, it would have caused her death pre-
maturely, from the ignorance, corruption and unskillfulness of the

The alleged slanderous words in the second count were, "Your
treatment of her was rascally ;" with an innuendo that "the defend-
ant meant to charge the plaintiff with being guilty of base, dishon-
est, and vile conduct towards the said Sarah AI. in his treatment of
her, as her physician aforesaid, and that the plaintiff was a low, vile
person, and unworthy of public confidence."

The defendant pleaded the general issue, with notice.

The jury having rendered a verdict in favor of the plaintiff,
the defendant moved for an arrest of judgment, for the insufficiency
of the declaration.

Stores, J. The question, on the motion in arrest of judgment
in this case, is, whether the declaration is sufficient, and that de-
pends on the question, whether the words alleged to have been
spoken, by the defendant, fall within the rule which renders words
actionable, that tend to the prejudice of a person, in his profession,
trade, or business. No special damage to the plaintiff is alleged in
the declaration, and the enquiry therefore is, whether the words
laid are actionable, in themselves.

On an examination of the authorities, we think it is clear, that,
to charge a physician merely with mismanagement in the treatment
of a particular case, is not, of itself, actionable. Such a charge im-
plies nothing more than ignorance or unskillfulness in that case, and
does not materially affect his reputation, as it respects his general
competency to practice in his profession. The most eminent physi-
cian may mistake the symptoms or treatment of a particular case,
without detracting from his general professional skill or learning.
To say of him, therefore, that he was mistaken in that case, would
not be calculated to impair the confidence of the community in his
general professional competency. In the language of the Supreme
Court of New York, in Foot v. Brown, 8 Johns. (N. Y.) 64, "To
carry the right of action so far as to sustain a suit for words, charg-
ing a professional man with ignorance in a particular case, would be
unnecessary for the protection of any profession, .and would be an
unreasonable check upon the freedom of discussion." In that case,
the court say, that there is not an instance, in the books which they
have met with, of a suit sustained for such a charge. Our investiga-
tion has led us to the same conclusion. It has, however, been stren-
uously urged, by the plaintiff's counsel, that the rule on this sub-
ject was extended in the case of Sumner v. Utley, 7 Conn. 257,
so as to render a charge of ignorance or unskillfulness in a par-
ticular case, actionable. We think that the court, in that case, so
far from varying the rule, as we have given it, clearly intended to
sanction it; and that that case was decided for the plaintiff, not on
the ground, that the words charged imputed to him merely igno-


ranee or a want of skill, in the particular case respecting wliich they
were spoken, but tliat, by a fair construction of them, they amounted
to an imputation ujjou him, of a want of general professional knowl-
edge and skill. That a charge of the latter description would be, in
itself, actionable, there was not any question. The division between
the members of the court did not arise from any difiference of opin-
ion, as to the principles of the law of slander, but only as to the
application of those principles to the words laid in that case. The
question on whicli they differed was, whether the words there
charged, imputed to tlie plaintiff's general incompetency, or only ig-
norance or unskillfulness, in the particular case alluded to. All
the judges admitted, that the words were actionable, or not, accord-
ing as they did, or did not, impute to the plaintiff, ignorance or in-
competency generally, in his profession. The dissenting judge
thought, that they did not amount to such an imputation, and on
this point only, differed from the majority of the court. That there
was no diversity of opinion, as to the legal principles applicable to
the case, it is quite obvious, from the language of Hosmer, C. J.,
in expressing the opinion of the court. He says, "I readily admit,
that falsehood may be spoken of a physician's practice in a par-
ticular case, ascribing to him only such want of information and
good management as is compatible with great general knowledge
and skill in his profession, and that, when such a case arises, unless
some special damage exists, his character will be considered as un-
hurt, and no damages will be presumed. But, on the other hand,
it is indisputably clear, that a calumnious report concerning a physi-
cian, in a particular case, may imply gross ignorance and unskill-
fulness, and do him irreparable damage. A physician may mis-
take the symptoms of a patient, or may misjudge as to the nature of
his disease, and even as to the power of a medicine ; and yet his
error may be that of a pardonal)le kind, that will do him no essen-
tial prejudice, because it is rather a proof of human imperfection,
than of culpable ignorance or unskillfulness. On the contrary, a

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 113 of 124)