Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 115 of 124)
Font size
QR-code for this ebook

prietors, to afford them such co-operation in effecting the object of
the treaty as he might judge proper; and that having accepted the
appointment, the plaintiff, on the 31st of August, 1826, attended a
treaty at Buffalo, and being satisfied of the fairness of the proposi-
tions of the proprietors, he sanctioned, approved and recommended
a treaty there made between the Indians and proprietors for the
extinguishment of the right of the Indians to the occupancy of the
lands, the subject of the treaty; charges the defendant with utter-
ing, in a discourse had on the ist June, 1828, of and concerning
the plaintiff, and of and concerning his conduct as such commis-
sioner, and in relation to the treaty which had been concluded, the
following words, alleged to be false, scandalous and defamatory,
viz. : "He bribed some of the Indians to sign the treaty ; he hired
some of the Indians to sign the treaty ; he was guilty of hiring or
bribing some of the Indians to sign the treaty; he was dishonest
with the Indians;" innuendo, that the plaintiff had misdemeaned
himself in his appointment, had perverted his office, and corruptly
exercised his influence with the Indians, by means of bribery and
corruption. The defendant demurred.

Sutherland, J, The demurrer is well taken. It is conceded
that the words do not impute an indictable offence ; if true, the
plaintiff would not be subjected by them to a criminal prosecution.

The action is put distinctly on the ground that the words \yere
spoken of the plaintiff as a public officer, and tended to his injury



FORWARD v. ADAMS. 819

and disparagement in that character. The fatal objection to the
action on this ground is, that it appears on the face of the declara-
tion that the plaintiff was not in office when the words were spoken;
but that the office itself being a special trust, and temporary in its
nature, had expired about two years before the uttering of the slan-
derous words. In Sir Lionel if'aldcn v. Mitchell (2 Ventr. 265),
the following dictum is imputed to the chief justice: "That where
a man had been in an office of trust, to say that he behaved himself
corruptly in it, as it imported great scandal, so it might prevent hi^
coming into that, or the like office again, and therefore was action}
able." The observation was not called for by the case, as the action
was sustained on an entirely different ground. Also, in Yelverton,
153, it appears to have been held that an action could be maintained
for the words, "When thou ivert a justice, thou zvert a bribing jus-
tice," for the same reason assigned in Ventris. Ch, J. De Grey, in
delivering the opinion of the court in Onslow V. Home (3 W'ils.
188), said : "I know of no case where an action for words was ever
grounded upon eventual damages which may possibly happen to a
man in a future situation, notwithstanding what the chief justice
throws out in 2 Ventr. 266. I think the chief justice went too far."
The authority of Chief Justice De Grey effectually disposes of these
cases. But he is also supported by many analogous decisions. Thus,
where an action is brought for words (not actionable in themselves)
spoken of a person in a particular calling, or profession, or employ-
ment, it must appear that he followed such profession or employ-
ment when the words were spoken. In Gibbs v. Price (Styles' R.
231), the judgment was arrested because it was not averred that the
plaintiff was a barrister at the time of the bringing of^ii^aotioi^the
words having been spoken of him in his professional character. In
Kin^ V. Lake (2 Ventris 28) (which was also a case of words
spoken of the plaintiff as a lawyer) , it was expressly stated that the
plaintiff was bred up to the law, and practised it, and had many per-
sons for his clients, and thereby got money and maintained his fam-
ily, &c. (i Vent. 50.) Upon the strength of these and other cases,
it is laid down in treatises upon this subject, that where an action is
brought for words spoken of a barrister or physician, it must appear
that he practised as such at the time the words were spoken ; for
otherwise, the words could not have affected him professionally.
(Starkie on Slander, 105. Bacon's Abr. tit. Slander, 212, 13, 14,
15.) So, if an action be brought for publishing words of a trades-
man, concerning his trade, it must be averred that at the time of pub-
lishing them he was in trade ; for if he were not at that time in
trade, his credit could not be hurt by the words. (Collins v. Malin,
Croke's Ch. 382. Croke Eliz. 273. Croke J. 222.) These cases all
admit this principle ; for altliough the court in some of them refused
to arrest the judgment, it was upon the ground, that after verdict
they would intend, from the general averment (that the plaintiff
had, for a long time preceding the day on which the words were
laid, exercised the trade), that he continued to exercise on the day
the words were published.



820 TERWILLIGER V. WANDS.

The ground of action in these cases is, that the party is dis-
graced, or injured in his profession or trade, or exposed to the
hazard of losing his office, in consequence of the slanderous words ;
not that his general reputation and standing in the community are
affected by them. It will be recollected that the words spoken, in
this class of cases, are not actionable of themselves, but that they
become so in consequence of the special character of the party of
whom they are spoken. The fact of his sustaining that general
character, therefore, lies at the very foundation of the action. On
this ground, therefore, the declaration is bad.

It may be questionable, also, whether the words necessarily
convey a charge of official misconduct. The terms bribing and hir-
ing the Indians to sign the treaty, are evidently synonymous, and
were intended to convey the same idea : and if the treaty which they
were by these means induced to sign, was a fair and advantageous
one for them, it may not have been a violation of the official duty
of the plaintiff (when the peculiar character of the Indians is con-
sidered), to have resorted to presents, or pecuniary inducements,
to procure their assent to it. It is unnecessary, however, to ex-
press any opinion upon this point.

Judgment for defendant upon demurrer.^



(d) Defamatory words causing actual harm, other than the mere
impairment of the plaintiff's reputation.



6^. C , •» V

TERWILLIGER v. WANDS.

New York Court of Appeals, 1858. 17 N. Y, 54.

Appeal from the Supreme Court. The action was for slander,
in charging that the plaintiff had been guilty of lewd and unchaste
conduct, alleging special damage.

At the trial plaintiff proved by Lafayette Wands that the de-
fendant had made statements to the witness imputing that the plain-
tiff had intercourse with a Mrs. Fuller, and that the defendant had
on another occasion told the witness that he would do all he could
to keep Mrs. Fuller's husband in the penitentiary so that he could
have free access to her.

Another witness, one Neiper, testified that the defendant had
made similar statements to him. Neiper had married a sister of
Mrs. Fuller and was an intimate friend of the plaintiff's, and re-
peated to the plaintiff what the defendant had told him,_ Neiper,
which had been spread by Wands all over the countryside. He
further testified that the plaintiff thereupon threw down his hoe and

^Accord: Bellamy v. Biirch, 16 M. & W. 590 (1847) ; Russell v. Anthony.
21 Kans. 450 (1879) ; McKee v. Wilson, 87 N. Car. 300 (1882) ; but imputa-
tions of past offenses injuriously affecting one holding office at the time when
they are published, are actionable, Sillars v. Collier, 151 Mass. 50 (1890).



TERWILLlCr-U f. WANDS. 821

left the field. There was evidence that after that time the plaintifif
slept hadly and grew ill and unahle to work. .

Dr. Price, the plaintiff's physician, tcstilied tliat the plaintiff
was suffering from dehility hrought on by mental trouble.

The plaintiff having rested the defendant moved for a non-
suit on the grounds: First. That the words were not spoken by
Wands to the phuntiff, nor authorized by him to be communicated
to the plaintiff ; Second. That there was no evidence that the dam-
ages, if any, proved, were occasioned by the speaking of the words
by the defendant. The court sustained the motion, and judgment
having been entered against the plaintiff" he appealed. At the general
term in the fifth district the judgment was affirmed, and from the
latter judgment an appeal was taken to this court.

Strong, J. The words spoken by the defendant not being ac-
tionable of themselves, it was necessary in order to maintain the
action to prove that they occasioned special damages to the plaintiff.
The special damages must have been the natural, immediate and
Jegal con sequence of the words} (Stark, on Sland., by Wend., 2d
ed., 203 ; 2 id., 62, 64; Beach v. Ranncy, 2 Hill 309; Grain v. Petrie,
6 id. 523; Kendall v. Stone, i Seld. 14.) Where words are spoken
to one person and he repeats them to another, in consequence of
which the party of whom they are spoken sustains damages, the
repetition is, as a general rule, a wrongful act, rendering the person
repeating them liable in like manner as if he alone had uttered them.
The special damages in such a case are not a natural, legal cous.^:.
quence of the first speaking of the words, but of the w^rongful act of
repeating them, and would not have occurred but for the repetition ;
and the party who repeats them is alone liable for the da mages,
(Ward V. Weeks, 7 Bing. 211 ; Hastings v. Palmer, 20 Wend. 225 ;
Keenholts V. Becker, 3 Denio 346; Stevens v. Hartivell, 11 Mete.
542.)- These views dispose of this case as to the right of action in

^As to this see Vickars v. Wilcocks, ante.

It is not necessary that the person, whose injurious action is caused by
the defendant's statements, should beHeve the accusations, Knig'.t V. Gibbs. 1
A. & E. 43 (1834), the defendant, the landlord of the plaintiff's employer,
complained of the latter's conduct, the employer, while not believing the
charge, was afraid of offending her landlord and dismissed the plaintiff.
"It may often happen that a person may not believe what is told, and yet not
have courage to keep the individual who labors under the imputation", per
Denman, C. J., p. 48; Gillett v. BuUhmit. 7 L. J. (O. S.) 490 (1846) note 3,
but see contra Wilson v. Goit. 17 N. Y. 442 (1858), scmhle: and Anon. 60 N.
Y. 262 (1875), where in consequence of a foul slander of his daughter, a
father, though not believing it to be true, refused to give her some promised
presents. In the last case the action of the father seems to have been alto-
gether due to his personal idiosvncrasv. and so not to have been the natural
result of the defendant's act; (see Lxnch \: Knight. ante) Jl'cldon v.De Bathe,
54 L. J. Q. B. 113 (1884); Dw\er v. Meehan, 18 L. R. (Ir.) 138 (1886);
MiUer V. David, L. R. 9 C. P. 118 (1874) ; and St>cake v. Hughes, L. R. 1904,
1 K. B. 138.

"" Accord: Hohvood v. Hof^kins. Cro. Eliz. 787 (1600) ; Tiinnicliffe v. Moss,
3 C. & K. 83 (1850) ; Dixon v. Smith. 5 H. & N. 450 (1860) ; Parkins v. Scott,
1 H. & C. 153 (1862), plaintiff herself repeated the defendant's statements
to her husband, who in consequence left her; Chnkc v. }f organ. 38 L. T. (N.
S.) 354 (1877) ; Speight v. Gosnay, 60 L. J. Q. B. 231 (1891), imputation of



822 TERWII.I-IGF.R 7'. WAXDS.

respect to all the words but those spoken to the witness Neiper, as
none of them were spoken by the defendant in the presence of the
plaintifif, or communicated to the plaintifif by the witnesses to whom
they were spoken by the defendant in the presence of the plaintitf,
or communicated to the plaintiff by the witnesses to whom they were
spoken by the defendant ; and there is no proof as to the circum-
stances under which they were repeated by those witnesses. In the
absence of evidence of those circumstances, the general rule, that a
repetition of slanderous words is wrongful, applies ; hence any dam-
ages which resulted from repeating them are a consequence of that
wrong, and not a natural, immediate and legal effect of the original
speaking of the words by the defendant.

In regard to the words spoken by the defendant to Neiper, it
is proved that they were communicated by the latter to the plain-
tiff, and that Neiper was at the time an intimate friend of the plain-
tiff'. This friendly action, it is claimed on the part of the plaintiff,
rendered the communication of Neiper to him proper; and, being
so, it is insisted that the defendant is responsible for the conse-
quences, in the same manner as if the words had been spoken di-
rectly to the plaintiff. There are several cases in which it is sug-
gested that circumstances may exist which will justify the repetition
of slanderous words, and that when repeated under such circum-
'stances, and damages ensue, the first speaker may be liable in like
manner as he would be if the injury had arisen from the words
•without the repetition. (Ward v. Weeks, 7 Bing. 211 ; Keenholts v.
Becker, 3 Denio 346; Olmsted v. Brozvn, 12 Barb. 657; McPherson
V. Daniels, 10 Barn. & Cress. 263.) Occasions may doubtless occur
where the communication of slanderous words by a person who
heard them wnll be innocent ; and it is certainly reasonable that when
repeated on such an occasion and damages result, the first speaker



unchastit}' made to plaintiff's mother, communicated by her to plaintiff and
by her to her betrothed, who broke off the engagement ; Bassell v. Elmore,
48 N. Y. 561 (1872); Stevens v. Harfzvell, 11 Mete. 542 (Mass. 1846);
Knight v. Blackford, 3 Mackey 177, 51 Am. Rep. 772 (D. C. 1884) ; Cameron
V. Cochrane, 2 Marv. 166 (Del. 1895), nor can the damages recoverable for
words actionable per se be enhanced by reason of the harm caused by their
unauthorized repetition. In Goiighv. Goldsmith, 44 Wis. 262 (1878), the same
rule was applied in an action for written words which were held not to be
per se actionable. In Davis v. Starrett, 97 Maine 568 (1903), the originator
of a slander is held to be responsible for the injurious consequences of such
repetitions as are the natural and necessarv consequences of his act; and see
Hardin v. Harsh field, 11 Ky. L. 638. 12 S. W. 779 (Ky. 1890).

One publishing an actionable libel is generally held answerable for the
damage done by such repetition as naturally results from its publication.
Miller v. Butler, 6 Cush. 71 (Mass. 1850) ; Zier v. Hofflin, 33 Minn. 66 (1885),
newspaper clipping sent bv a third person to the plaintiff's fiancee; Mer-
chants' Insurance Companv v. Buckncr, 98 Fed. 222, 39 C. C A. 19 (1899) ;
King V Patterson, 49 N. J. L. 417 (1887) ; but see Konkle v. Haven, 140 Mich.
472 (1905).

One making an oral statement to the reporter of a newspaper, intendmg
it to be published, is of course liable for the consequences of its publication,
Bond V. Douglas, 7 C. & P. 626 (1836). aliter. if he merely makes the state-
ment in the presence of reporters, who, without any request by him, publish
it, Schoepflin v. Coffey, 162 N. Y. 12 (1900).



TERWILLIGER V. WANDS. 823

should be held responsible for the damages, as flowing directly and
naturally from his own wrong.-'

But there is another ground upon which the judgment must be
affirmed. The special damages relied upon are not of such a nature
as will support the action. The action for slander is gjven by the
law as a remedy for "injuries affecting a man's reputation or good
name by malicious, scandalous and slanderous words, tending to his
damage and derogation." (3 P.l. Com., 123; Stark, on Sland.,
Prelim. Obs., 22-29; i id., 17, 18.) It is injuri ea^ Yecting the repn-
tation only which are thc stibject of th£ _m±Lon. In the case of
slanderou s words TrctTrmTrT)Te7'<^> sc, the law, from their natural and
immediate tendency to produce injury, adjudges them to be in-
jurious, though no special loss or dama-ge can be proved. "But with
legard to words that do not ai)parently and upon the face of them
import such defamation as will of course be injurious, it is neces-
sary that the plaintifif should aver some particular damage to have
happened." (3 Bl. Com., 124.) As to what constitutes special dam-
ages, Starkie mentions the loss of a marriage, •* loss _of_ hospitable
gratuitous entertainment,^ preventing a servant or bailiff from get-
ting a place," the loss of customers by a tradesman ;' and says that



^Gillett V. BuUlvant, 7 L. T. (O. S.) 490 (1846), defendant told the
father of the plaintiff, a governess, that she had had a child by her employer
— the father went to the employer and told him what defendant had said —
the employer though of course knowing the report to be false, dismissed her
for fear of scandal— defendant was held liable; Derry v. Handley, 16 L. T.
263 (18o7), defendant told the husband of a customer of the plaintiff, a
dressmaker, that the latter was a woman of immoral character. The husband
told his wife, who ceased to employ the plaintiff; and see Kendillon v. Malthy.
1 Car. & Alarsh. 402 (1842) ; and Bree v. Masrescaux, L. R. 7 Q. B. D. 434
(1881); Fozdcs v. Bozven, 30 N. Y. 20 (1864), repetition by one partner to
another of statements affecting the honesty of a clerk; Olmsted v. Brozvii, 1-
Barb. 657 (1852), semble. .

*This whether the loser of the marriage is a woman, Davies v. Gardiner.
4 Coke Rep. 16 b., Poph. 36 (1593); Moody v. Baker. 5 Cow. 351 (N. Y.
1826), or a man, Matthezv v. Crass, Cro. Jac. Z2Z (1613) ; see for a success-
ful action on the case against one falsely asserting the plaintiff to be con-
tracted to him, for the purpose of preventing her marriage with another,
Shcppard v. IVakeman, 1 Lev. 53 (1662). As to the loss of the chance of
marriage with a suitor, there being no engagement of marriage, see U eaver
V. Riller, 3 Pa. Dist. R. 419 (1894). t t^ ^ /T

^ Moore v. Meagher, 1 Taunt. 39 (1807) ; Davies v. Solomon, L. R. 7 g.
B. 112 (1871); but not the mere loss of the esteem and society of ones
neighbors and friends, if no gratuitous entertainment is thus lost, Barnes v.
Prudlin and Bruddcl. 1 Lev. 261, 1 Sid. 396 (1664) : nor exclusion from a re-
ligious society, church or club, Roberts v. Roberts. 5 B. & b. 384 (1804) ;
Chamberlain v. Boyd, L. R. 11 Q. B. D. 407 (1883); but sec Barnabas \\
Traunter, 1 Vin. Abr. 396 (1641); Dzvxer v. Meelian, -IS L. R. (Ir.) L>3
(1886). -^

'This applies whether the plaintiff is discharged from his situation .)r
fails to obtain one, Martin v. Strong. 5 .V. & E. 535 (1S36) : Payne v Beau-
morris, 1 Lev. 248 (1664) ; Sterrv v. Forman. 2 C. & P. 592 (1827), but see
Chamberlain v. Bovd. L. R. 11 Q. B. D. 407 (1883). sufyra n. 5. „ „ p „

''Davies v. Gardiner, 4 Coke Rep. 16 b; in Storey v. Challands, 8 C. & P.
234 (1837), the loss of a prospective customer of very doubtful solvency was
held sufficient damage. Where the words are not spoken of the plaintit. in
respect to his trade or profession, it seems that it is not enough to aver and



S'24. TERWir.r.IGr.R 7'. WAXDS.

in general whenever a person is prevented by the slander from re-
ceiving that which would otherwise be conferred upon him, though
gratuitously,^ it is sufficient, (i Stark, on Sland., 195, 202; Cooks
Law of Def., 22-24.) I" Olmsted v. Miller (i Wend. 506), it was
held that the refusal of civil entertainment at a public house was
sufficient special damage. So in IVilliams v. /////, (19 Wend. 305),
was the fact that the plaintiff was turned away from the house of
her uncle and was told not to return until she had cleared up her
character. So in Beach v. Ranney,^ was the circumstance that per-
sons, who had been in the habit of doing so, refused longer to pro-
vide fuel, clothing, &c. (2 Stark, on Ev., 872, 873.) These instances
are sufficient to illustrate the kind of special damage that must re-
sult from defamatory words not otherwise actionable to make them
so ; they are damages produced by, or through, impairing the reputa-
tion.

It would be highly impolitic to hold all language, wounding the
feelings and affecting unfavorably the health and ability to labor, of
another, a ground of action ; for that would be to make the right of
action depend often upon whether the sensibilities of a person spo-
ken of are easily excited or otherwise ; his strength of mind to dis-
regard abusive, insulting remarks concerning him ; and his physical
strength and ability to bear them. Words which would make hardly
an impression on most persons, and would be thought by them, and
should be by all, undeserving of notice, might be exceedingly painful
to some, occasioning sickness and an interruption of ability to at-
tend to their ordinary avocations. There must be some limit to lia-
bility for words not actionable per se, both as to the words and the



prove a general loss of custom or entertainment or the payment of money.
The plaintiff must show the particulars, whose custom or entertainment was
lost, or why he was forced to pay the money, Barnes v. Prudlin, 1 Sid. 396
(1669): Hopgood v. Thorn. 8 C. B. 293 (1849); Petfiboiie v. Simpson, 66
Barb. 492 (X. Y. 1873)j Cook v. Cook, 100 Mass. 194 (1868): Pollard v.
Lyon., 91 U. S. 225 (1875), though it is not necessary to do more than to
show that customers, whose names cannot be ascertained, have been driven
away, Hargrove v. LeBreton, 4 Burr., p. 2422 (1769), auction broken up by
defendant's statements; but see contra, Brady v. Youlden, Kerford & Box's
Dig. of Vict. Cases 709 (1867). When the words are actionable as touching
the plaintiff's trade or profession, it is generally held that a general loss of
trade may be proved as special damage, Ratcliffe v. Evans, L. R. 1892, 2 Q. B.
524; Trenton Mutual Life, etc., Co. v. Perrine. 23 N. J. L. 402 (1852) ; IVciss
V. Whittemore, 28 Mich. 366 (1873) ; and see Morasse v. Brochu, 151 Mass.
567 (1890).

^ Corcorati v. Corcoran, 7 Ir. C. L. R. 272 (1857), declaration alleging
that in consequence of defendant's statements, plaintiff's brother withdrew
his promise to assist her in emigrating to Australia, held good on demurrer.

* It was, however, held that the plaintiff being a married woman, for
whom her husband was still bound to provide though separated from her,
this loss was in law not hers, but her husband's. It was also held that the
allegations, that the plaintiff suffered loss of peace of mind and body, that
she was turned out of a moral reform society, and that her husband aban-
doned her, did not show any pecuniary loss or legal damage, and that the act
of children throwing missiles into her house and calling her harsh names was
too remote a consequence of the slander to be charged to the defendants,
citing Vicars v. Wilcocks, 8 East 1.



TERWILLIGF.R 7\ WANDS. 82^



:)



kind of damages, and a clear and wise one has been fixerl by the
law. The words must be defamatory in their nature;"' and must in'
fact disparage the character ; and this disparagement must be evi-
denced by some positive loss arising therefrom directly and legiti
mately as a fair and natural result. In this view of the law words
which do not dcgrade_thecharactcr, do not injfTre it, and cannot
occasion loss. fit necessarily followsTrom the rule that the words
must be dispraging to character, that the special damage to give
an action must flow from disparaging it. In the case last cited (Kel-
ly V. Partington, 5 R. & A. 645) the plaintiff actually suft'ercd dam-
age from the defendant's words by their bringing her into disrepute,
but the words were not calculated to produce such a result and there-
fore the action would not lie. In the present case the words were
defamatory, and the illness and physical prostration of the plaintiff"
may be assumed, so far as this part of the case is concerned, to have
been actually produced by the slander, but this consequence was not,
in a legal view, a natural, ordinary one, as it does not prove that the
plaintiff's character was injured. The slander may not have been
credited by or had the slightest influence upon any one unfavorable
to the plaintiff; and it does not appear that anybody believed it or
treated the plaintiff" any different from what they would otherwise
have done on account of it. The cause was not adapted to produce
the result which is claimed to be special damages. Such an effect
may and sometimes does follow from such a cause but not ordina-
rily ; and the rule of law was framed in reference to common and
usual effects and not those which are accidental and occasional.