Francis H. (Francis Hermann) Bohlen.

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single act or omission of his, may evince gross ignorance, and such
a deficiency of skill, as will not fail to injure his reputation, and de-
prive him of general confidence." And. after noticing the cases
cited by the defendant's counsel, he examines the words charged to
have been spoken by the defendant, and shows that in their fair im-
port, they impute to the plaintiff, such monstrous and culpable ig-
norance and mismanagement, that every person of sense and re-
flection, who should believe the imputations cast upon him, would
consider him generally as a man of ignorance and unskillfulness.
and unworthy of confidence, and not merely, that there was that
want of knowledge or skill which would arise from the common im-
perfections of humanity. We think, therefore, that no new prin-
ciple is established, in that case, and that the court meant onlv to
decide that, while words imputing to a physician merelv professional
ignorance or mismanagement in a particular case, are not actionable
in themselves, they become so, if. in addition to that, thev convey
the charge of general professional ignorance or incompetency.

8l2 CAMP 2'. MARTIN.

The declaration in this case, after alleging, that the plaintiff
was a practicing physician, and, as such, had been called to, and
visited and prescribed for, Sarah M., states that the words laid were,
by the defendant, falsely and maliciously spoken, of and concerning
the plaintiff, and his professional treatment in her case, and they
must be deemed to have been so spoken. If, however, these words
are not in themselves actionable, it is obviously immaterial, that they
were spoken falsely and maliciously, since their falsity, or the mo-
tive with which they were uttered, would not, in that case, "make
them slanderous, and there is no averment of any special damage,
to render them so. It does not appear, from the declaration, that
the words were spoken with any meaning, which was peculiar or
different from their ordinary signification. The innuendo in the
first count does indeed state that, by the expression of the defend-
ant, that the plaintiff's treatment of the person mentioned was ras-
cally, the defendant meant, that the plaintiff's treatment of her
was such that, if it had been continued, it would have caused her
death prematurely, from the ignorance, corruption and unskillful-
ness of the plaintiff; and, in the second count, that, by that ex-
pression he meant that the plaintiff was guilty of base, dishonest
and vile conduct towards her in his treatment of her, as her physi-
cian, and that the plaintiff was a low, vile person, and unworthy of
public confidence. But it is well settled, that the meaning of the
words laid cannot be extended by the innuendo, the office of which
is merely explanatory of those w^ords. Looking then, as we must, at
the words laid in the first count, in their ordinary signification, we
are of opinion, that it appears, that they were spoken only with
reference to the particular case in which it is stated the plaintiff
was employed, and that they do not necessarily, naturally or fairly,
impute to him general ignorance or unskill fulness, or corruption,
or a want of integrity, either generally or in the treatment of that
case. But for the last expression of the defendant, that the plain-
tiff's treatment of the said Sarah I\I. was rascally, it would not be
susceptible of a doubt, that the words laid conveyed no imputation
on the plaintiff, not compatible with his being a practitioner of skill
and learning generally, and perfect integrity. That expression, as
connected with the previous words, certainly implies, that there was
mismanagement of some kind, on the part of the plaintiff, in the
treatment of that case. But it does not appear, from the language
used, or any averment in the declaration, what constituted that mis-
management, or whether it consisted of negligence or inattention
to his patient, in that case, or of some other conduct, which would
indicate a want of integrity or general capacity. If the words spoken
imputed to the plaintiff the former only, they would not, in our
opinion, be slanderous ; and we do not think that we should be
warranted in giving them a more extended meaning. With respect
to the second count, the words laid therein consist merely of the
single expression above recited ; and the considerations to which
we have adverted, in regard to that expression, as constituting a
part of the words laid in the first count, are applicable to this count,
and show that the words laid in it are not in themselves slanderous.


The declaration bein,[^ insufficient, it is unnecessary to consider
the questions arising on the motion for a new trial.

The superior court is advised, that the ju<Jgnient should be ar-

Judgment arrested/


Court of Exchequer, 1841. 7 Meeson & IVelsby's Reports, 422.

Action of Slander. — The declaration stated, that the plaintiff
was a brewer, and that the defendant falsely and maliciously spoke
and published of and concerning him in the way of his trade as a
brewer, the false, scandalous, malicious, and defamatory words fol-

^ Accord: Jones v. Diver, 22 Ind. 184 (1864) ; Gauvreau v. Superior Pub-
lishing Co., 62 Wis. 403 (1885); Foster v. Scrip ps, 39 Mich. 376 (1878;;
J'ratt V. Pionccr-Prcss Co., 35 Minn. 251 (1886), accusation that a physician
had left the decomposing body of a dead infant to remain for several days
in the room with its ill mother, held to accuse him of a "reckless disregard of
the life and health of the patient. The common sense of any man will tell
him that the natural, and indeed necessary effect of such a charge against a
physician, if believed, would be to injure his professional reputation":
Mitchell, J., p. 255; Secor v. Harris, 18 Barb. 425 (N. Y. 1854), accusation
that physician had killed defendant's children by giving teaspoonful doses of
calomel; Johnson v. Robertson, 8 Porter 486 (Ala. 1839), similar accusation:
Garr v. Selden, 6 Barb. (N. Y.) 416 (1848), unprofessional conduct in a par-
ticular suit imputed to attorney; Tutty v. Alewin, 11 Mod. 221 (1709) ; contra.
Poe V. Mondford, Cro. Eliz. 620 (1597), accusation that physician killed a
patient with physic, a case decided when every alleged slander was construed
mitiori scnsu; Foot v. Brozvn, 8 Johns. 64 (N. Y. 1811), accusation that at-
torney knew nothing about a particular suit. When the words used, such as
"malpractice", on their face import unprofessional or illegal conduct, even on
a single occasion, they are actionable, Rodgcrs v. Kline, 56 i\Iiss. 808 (1879).
In Manire v. Hubbard, 110 Ky. 311 (1901), the charge in regard to the plain-
tiff's conduct on the one occasion in question was held not to impute general
incompetency or unprofessional conduct; see also, Lynde v. Johnson, 39 Hun
12 (N. Y. 1886). The allegation of a single specific act of dishonesty or
improper conduct on the part of a trader is generally held actionable, see
cases cited in note to Jones v. IJttlcr, ante. It is imivcrsally held that gen-
eral charges of ignorance or incompetence or unprofessional conduct on the
part of either a physician, barrister or attorney, are actionable per se: Flotacr's
Case, Cro. Car. 211 (1631). midwife ; Sicift v. Dickertna)i,3\ Conn. 285 (1863) ;
De Pezv v. Robinson, 95 Ind. 109 (1884) ; Tarlton v. Lagarde, 46 La. Ann.
1368 (1894): Carroll v. White. 2,2, Barb. 615 (1861); Cruikshank v. Gordcu.
118 N. Y. 178 (1890), all accusations against physicians, JVhite v. Carroll, 42
N. Y. 161 (1870), calling a phvsician a "quack": Peard v. Jones, Cro. Car
382 (1635) ; Baker v. Mnrfue. Sid. 2,27 (1667) : Riqqs v. Denniston. 3 John.
Cas. 198 (N. Y. 1802) : Chipman v. Cook. 2 Tyler 456 (Vt. 1803) ; Ctcmmons
V. Danforth. 67 Vt. 617 (1895) ; Rush v. Cavenaugh, 2 Pa. St. 187 (1846). and
so are accusations against a public officer of gross ignorance of his duties,
Spiering v. Andrac. 45 Wis. 330 (1878). It has been held actionable per se,
to say of a physician that he was no scholar. Caxvdrcy v. Uighlcy, Cro. Car.
270 (1632) ; or that he has bought his diploma, Bcrgold v. Puchta, 2 Thomp.
& C. 532 (N. Y. 1874), but see Foster v. Small, 3 Wharton 138 (Pa. 1837).
where it was held not actionable to say that a physician had no diploma, a
college training being at that time neither required by law or readily obtain-
able : or to say of an attornev that he has never been admitted to the bar,
Goldrick v. Levy, 8 Ohio Dec. 146 (1881).


lowing: "I'll (meaning that he, the defendant would) bet £5 to £i,
that Mr. Jones (meaning the plaintiff) was in a sponging-house for
debt within the last fortnight, and I can produce the man w^ho
locked him up ; the man told me so himself ;" whereupon the said
Henry Pye then asked the defendant, "Do you mean to say, that
Mr. Jones, brewer, of Rosehill (meaning and dgijcnbing l^he plain-
tiff',) has been in a sponging-house within the la*t "fortnight for
debt?" and thereupon the defendant then replied to the said Henry
Pye, and the said other persons then present, "Yes, I do."

The cause was tried before Rolfe, B., at the last Liverpool as-
sizes, w'hen, no special damage having been proved, it was objected,
on the authority of Ayer v. Craven, 2 Ad. & Ell. 2, 4 N. & M. 220,
that the words could not be considered as spoken of the plaintiff
in the way of his trade, and therefore that he ought to be nonsuited.
The learned judge refused to nonsuit, and the jury returned a ver-
dict for the plaintiff.

Parke, B. It is quite clear that this rule ought to be dis-
charged for the only ground on which it was granted has failed,
inasmuch as the learned judge did leave the question to the jury,
vv'hether the words were spoken of the plaintiff' in his trade ; and,
indeed, it is plain that the words were so used, from the fact, that
in the conversation in question, the plaintiff' was spoken of as a
brewer. Independently of that, however, and even if they were
spoken of him in his private character, I think the case oiStanton
V. Smith is an authority to show that the words would have been
actionable, because they must necessarily affect him in his trade.
It is there said, "We are all of opinion that such words spoken of
a tradesman must greatly lessen the credit of a tradesman, and be
very prejudicial to him, and therefore that they were actionable."
That case is distinguishable from Ayre v. Craven and Doyley v.
Roberts. In the latter of those cases, the words were not spoken
of the plaintiff in his business of an attorney ; and in the former
it did not appear in what manner the immorality was connected with
the plaintiff's profession of a physician ; and it was possible that
such imputations of incorrect conduct, out of the line of their re-
spective professions, might not injure their professional char-
acters. But this case is distinguishable, because here the imputa-
tion is that of insolvency, which must be injurious; for if a trades-
man be incapable of paying all his debts, whether in or out of trade,
his credit as a tradesman, which depends on his general solvency,
must be injured. The case of Stanton v. Smith, as it appears to me,
is good law, notwithstanding the observations of Coltman, J,, in
D'Oyley v. Roberts.

Alderson, B., and Rolfe, B. concurred

Rule discharged.^

'^Accord: Stanton v. Smith, 2 Ld. Raym. 1480 (13 Geo. 1), "he com-
pounded his debts at five shillings in the pound" held actionable without
colloquium; Davis v. Ruff, Cheves 17 (S. Car. 1839), when words are such
as to affect a man's credit, then it is not necessary to aver nor to prove that
they were spoken in reference to the particular trade or business which the
party was pursuing."


See Andrews, J. in Sanderson v. Caldwell, 45 X. Y. 398 (1871), p. 404-5;
"In general, words of mere opproljrium, or charging general immorality not
amounting to crime, are not actionable />^r se, and the rule cited states the
exception which has been uniformly recognized; but there is some confusion
in the cases upon the point whether the words used must, in terms, be ap-
plied by the speaker to the office, business or profession of the person who
claims to recover by reason of them, and whether, if not so expressly ap-
plied, they can be said to touch him in the special character named. The
rule derived from the authorities, and with which most of the cases can "be
reconciled, seems to be this : When the words spoken have such a relation
to the profession or occupation of the plaintiff that tbey directly tend to
injure liim in respect to it, or to impair confidence in his character or ability,
when, from the nature of the business, great confidence must necessarily be
reposed, they are actionable, although not applied by the speaker to the pro-
fession or occupation of the plaintilf; but when they convey only a general
imputation upon his character, equally injurious to any one of whom they
might be spoken, they are not actionable, unless such application be made.
(Cawdrcv v. Highlev, Cro. Car. 270; Chaddock v. Briggs, 13 yiass. 248
(1816) ; Davis v. Ruff, Cheves 17 (S. Car. 1839) ; Ayre v. Craven, 2 Ad & El.

2 (1834) ; D'Oylev v. Roberts, 3 Bing. N. C. 835; Jones v. Littler, 7 M. & W.
423; Starkie on Slander, 118; 1 New Lead. Cas. 124.)"

So in Cazi'drey v. Iligkley, Cro. Car. 270 (1632), it was held actionable
to say to a physician that he was no scholar without any colloquium as to his
profession. And in Chaddock v. Briggs, 13 Mass. 248 (1816), an accusation
of drunkenness made against a minister of the gospel as a man and not as
a minister, was held actionable.

Accusations of insolvency directed against a merchant or trader, no mat-
ter how lowly, to whom credit is essential as such, Ostrom v. Calkins, 5
Wend. 263 (N. Y. 1830), have from the earliest times been held to be action-
able, if spoken of him as a merchant or trader; Johnson v. Lemmon, 2 Rolles
Rep. 144 (17 Jac. 1) ; Davis v. Leiais, 7 T. R. 17 (1796) ; Drake v. Hill, Sir
T. Raym. 184 (1645), Barnes v. J-Iolloway, 8 T. R. 150 (1799), statement that
a farmer could not pay his laborers ; IVhittington v. Gladwin, 5 B. & C. 180
(1826), insolvency charged to an innkeeper, though at the time innkeepers
were not subject to the bankruptcy laws; Lezvis v. Hati'ley, 2 Day 495 (Conn.
1807), bankruptcy imputed to a drover; Hays v. Mather, 15 111. App. 30
(1884), statement that plaintiff was under age and not legally responsible
for his contracts, concluding "a word to the wise is sufficient" held action-
able; Simons v. Burnham. 102 Mich. 189 (1894) ; Mott v. Comstock, 7 Cow.
654 (N. Y. 1827); Phillips v. Hoefer, 1 Pa. St. 62 (1845); Davis v. Ruff,
Cheves 17 (S. Car. 1839).

Accusations of trade dishonesty or dishonest dealings in the course of
trade "be it ever so base", Terry v. Hoofer, 1 Lev. 115 (1663), are equally
actionable per se; Crowfoot v. Dale, 1 Vent. 263 (1694), keeping false books;
Backus V. Richardson, 5 Johns. 476 (N. Y. 1809), ace, but see Rathbun v.
Emigh, 6 Wend. 407 (N. Y. 1831), to the effect that this is so only if the
principal and general business of the plaintiff necessarily requires the keep-
ing of the books and not where they are kept by a farmer, in the course of
a collateral undertaking of buying and selling lumber of and to a few per-
sons; Griffith v. Leans, 7 Q. B. 61 (1845), using false weights: Joralemon v.
Pomeroy, 22 N. J. L. 271 (1849), ace: Jesson v. Hayes, Roll. Abr. 63 (1636).
adulteration; Babonneau v. Farrell, 15 C. B. 360 (1854), use by contractor of
old material in a piece of work, in which the contract required new; Surman
V. Shelleto, 3 Burr. 1688 (1765). specific act of cheating; Frcisinarr v. Moore,
65 N. J. L. 286 (1900). ace: Thomas v. Jackson, 3 Bing. 104 (1825) ; Brvant
V. Loxton, 11 Moore 344 (1826) ; Gross Coal Co. v. Rose, 126 Wis. 24 (1905),
an extreme case in which it was held slander per se, to accuse, during a politi-
cal speech, a coal company of avarice and of refusing to sell coal during a
famine except at an extortionate price.

Statements that the plaintiff is a "cheat" or "rogua" in his trade are action-
able. Terry v. Hooper, 1 Lev. 115 (1663); Surman v. Shelleto. 3 Burr. I088
( 1765) : Marshall v. Addison. 4 Harr. & McH. 537 (Md. 1773) : Mills v Taxlor

3 Bibb 469 (Ky. 1814); Harris v. Burley. 8 N. H. 256 (1836); Nelson v.


Brockenaus, 52 111. 236 (1869) ; Frcisinger v. Moore, 65 N. J. L. 286 (1900) ;
Fred v. Tray lor, 115 Ky. 94 (1903). To accuse a trader of cheating or of
other improper conduct as such on one specific occasion, is actionable, Sur-
inan v. Sliellcto, 3 Burr. 1688 (1765); Babonncau v. Farrcll, 15 C. B. 300
(1854) ; Frcisinger v. Moore, 65 N. J. L. 286 (1900). It is however not ac-
tionable to call a trader a rogue or a cheat or a swindler unless the accusa-
tion refers to his trade, Cotes v. Ketle, Cro. Jac. 204 (1608) ; Davis v. Miller,
2 Str. 1169 (1774). It is actionable to accuse of dishonesty in his calling any
orie whose calling requires honesty, as a clerk or servant. Seaman v. Bigg,
Cro. Car. 480 (1637) ; Reginald's Case, ib. 563 (1640) ; Fozvlcs v. Bowen, 30
N. Y. 20 (1864) : see also Foulger v. Newcomb, L. R. 2 Ex. 327 (1867), where
it was held slander per se to accuse a gamekeeper of trapping foxes.

It is not a slander of a trader, as such, to disparage the quality of the
goods which he sells, the statement must be personal to him ana impute to
him dishonesty or incompetency, otherwise the proper action is not slander
but an action for trade libel cognate to slander of title, Tobias v. Harland, 4
Wend. 537 (N. Y. 1830), so it is not actionable to say that a butcher has
sold a diseased animal unless it is alleged and proved that he knew it to be
so, Stevens v. HartweU, 11 Mete. 542 (Mass. 1846), or that the article sold
is such that he must have known it to be improper for sale. Singer v. Bender,
64 Wis. 169 (1885), see Young v. Kuhn, 71 Tex. 645 (1888) ; and Henkel v.
Schaub, 94 Mich. 542 (1893).

Court of Appeal, 1892. Law Reports, 1 Queen s Bench.

Action for slander.

Lord Herschell. This action raises a question of some nov-
elty, and not without importance. The action was brought by the
plaintiff, who had been elected town councillor, and is an action
of slander, in which the defendants are charged with having said
that the plaintiff was "never sober, and not a fit man for the coun-
cil." The verdict passed for the plaintiff, and the jury must be
taken to have found that those words were in fact used. But the
defendant's appeal against the judgment which w^as entered for the
plaintiff, on the ground that, assuming these words to have been
used, under the circumstances in which they are alleged to have
been used, an action of slander will not lie. Now, I think it must
be taken that those words were not mere words of abuse, but that
they do impute to the plaintiff, who had been elected a town coun-
cillor, that he was an habitual drunkard, and that, as an habitual
drunkard, he was not a fit man to discharge the duties of a town
councillor. The question is whether, in respect of such an imputa-
tion, an action will lie. It is quite clear that as regards a man's
business, or profession, or office, if it be an office of profit, the mere
imputation of want of ability to discharge the duties of that office
is sufficient to support an action. It is not necessary that there
should be imputation of immoral or disgraceful conduct. It must
be either something said of him in his office or business which may
damage him in that office or business, or it must relate to some
quality which would show that he is a man who, by reason of his
want of ability or honesty, is unfit to hold the office. So much with
regard to offices of profit ; the ♦■eason being that in all those cases


the court will presume, or perhaps I should ratiier say the law pre-
sumes, such a probability of pecuniary loss from such imputation,
in that office, or employment, or profession, that it will not require
special damage to be shewn. It may be said to be an arbitrary rule.
Be it so ; but the rule is, at all events, laid down, and seems to me
to rest on that basis. But when you come to offices that are not
offices of profit, the loss of which, therefore, would not involve nec-
essarily a pecuniary loss, the law has been differently laid down,
and it is quite clear that the mere imputation of want of ability or
capacity, which would be actionable if made in tlie case of a person
holding an office of profit, is not actionable in the cas»o^a person
holding an office which has been called an office of credit or an office
of honor. In his work on the law of libel. Air. Starkie points out that
the distinction which has been drawn is not by any means satis-
factory. I think nobody can read the cases without feeling this
to be so. The ground upon which Holt, C. J., puts it is, that a
man cannot make himself wiser or more able than he is — he cannot
add to his ability — but he may make himself a better man. How \\
Prinn, 2 Salk. 694; Holt, 652. That is not a very satisfactory foun-
dation on which to rest a legal distinction ; but, however it may be,
tnere it is. Now, it having been held that there is a distinction be-
tween that which is actionable, in the case of offices of honor or
credit as compared with the case of an office of profit, the ground
upon which the action has been said to be maintainable in the for-
mer case, certainly in some of the authorities, would seem to be this,
that the language used has been such as, if true, would shew that
the man ought to be deprived of his office, and therefore involves
a risk of exclusion from that office.

LiNDLEY, L. J. I am of the same opinion. It is not open to
us to remodel the law of slander, and I. do not think that it is
desirable that we should extend the limits within which actions
will lie for words which are merely spoken. We are not dealing
with libel ; we are dealing with mere slander. Not mere abuse ;
the defendants have gone beyond the limits of mere abuse. They
have deliberately charged the plaintiff* with intemperance, such
habits of drunkenness as unfit him to be a town councillor. That
is the slander complained of, and that is the slander proved. Now
the cases, when looked at, are not based on very logical principles,
but they are based upon working rules wdiich are intelligible enough,
and are to a certain extent reasonable enough. What the plaintiff"
complains of here is a slander which is to the eff'ect that, by reason
of his drunkenness, he is unfit for the office which he aspires to fill, ♦
and to which he has been elected. He is not charged with any
malversation in his office ; we have not to consider that. He is
charged simply with being so often drunk as not to be fit to be a
town councillor. Now, the first thing, to my mind, which we have
to find out is this : whether he can be removed from the office of
councillor because he is often drunk. I can find nothing in the
statutes relating to borough councillors which enables anybody to
be removed by "reason of drunkenness. That being so, we have to


face decisions which shew that when a person is merely accused of
unfitness for an office of honor (not of profit, with which we are not
deahng), that unfitness must be one which would expose him to
the risk of removal from the office which he fills, or seeks to fill.
That this is the law was settled at least as early as Onslow v. Home,
2 W. Bl. 750, when De Grey, C. J., reviewed some previous deci-
sions, and I can find no doubt thrown on that doctrine in any case
which has been decided since.

Appeal allowed.



FOR^^■ARD V. AD a:\is.

Supreme Court of New York, 1831. 7 ]Vendell 205.

Demurrer to declaration. The action is slander. The declara-
tion, after stating by way of inducement that on the 23d of ^lay,
1826, the plaintiff was appointed by the president of the United
States a commissioner on the part and behalf of the United States,
as the general protector of the Indian tribes, to attend a treaty to
be held between the proprietors of the pre-emption right to certain
lands held by Indians in the state of New York, and those Indians
under the sanction of the government of the United States, for the
extinguishment of the right of the Indians to the occupancy of such
lands, with instructions to exercise a sound discretion in the busi-
ness, and if satisfied of the fairness of the propositions of the pro-