Francis H. (Francis Hermann) Bohlen.

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It is true that this element of the action for slander in the case
of words not actional)le of themselves — that the special damages
must flow from impaired reputation — has been overlooked in sev-
eral modern cases, and loss of health and consequent incapacity to
attend to business held sufficient special damage. (Bradt v. Tozi's-
Icy, 13 Wend. 253 ; Fuller v. Fenner, 16 Barb. 333) ; but these cases
are a departure from principle and should not be followed.

Where there is no proof that the character has suffered from
the words, if sickness results it must be attributed to apprehension
of loss of character, and such fear of harm to character, with result-
ing sickness and bodily prostration, cannot be such special damage
as the law requires for the action. ^^ The loss of character must be
a substantive loss, one which has actually taken place.

Judgment affirmed.

^''Accord: Kelly v. Partington, 4 B. & A. 700 (1833), as to which see the
interesting note in Bovver on Actionable Defamation 447; Shcahan v. Ahearn,
Jr. R. 9 C. L. 412 (1875) ; Legg v. Dunlevy, 10 Mo. App. 461 (1881) ; but see
Rat cliff c v. Evans, post, and Hardin v. Harsh field, 11 Kv. L. 638, 12 S. W.
779 (kv. 1890).

"In Allsop V. Allso/y, 5 H. & N. 534 (1860), in which the declaration,
held bad on demurrer, alleged that in consequence of the defendant's accusa-
tions, plaintiff's friends and neighbors refused to associate with her and she
was brought into public scandal and disgrace, bv reason of which she became
ill. etc. Accord: Wilson v. Goit, 17 X. Y. 442 (1858). A fortiori, mere loss
of peace of mind is not sufficient damage to support an action for words not



826 THORLEV V. LORD KERRY,



SECTION 2.
! Libel.

THORLEY V. LORD KERRY.

Court of Common Picas, 1812. 4 Tauiito)i's Reports, 355.

]\L\XSFIELD, C. J. This is a writ of error, brought to reverse a
judginent of the Court of King's Bench, in which there was no argu-
ment. It was an action on a libel published in a letter, (wherein
Lord Kerry was charged with being a hypocrite, and using the cloak
of religion for unworthy purposes,) which the bearer of the letter
happened to open. There is no doubt that this was libel, for which
the plaintiff in error might have been indicted and punished ; be-
cause, though the words impute no punishable crimes, they contain
that sort of imputation which is calculated to vilify a man, and
bring him, as the books say, into hatred, contempt, and ridicule ; for
all words of that description an indictment lies ; and I should have
thought that the peace and good name of individuals was sufficiently
guarded by the terror of this criminal proceeding in such cases. The
words, if merely spoken, would not be of themselves sufficient to
support an action. But the question now is, whether an action will
lie for these words so Avritten, notwithstanding that such an action
would not lie for them if spoken ; and I am very sorry it was not dis-
cussed in the Court of King's Bench, that we might have had the
opinion of all the twelve judges on the point, whether there be any
distinction as to the right of action, between written and parol scan-
dal; for myself, after having heard it extremely well argued, and
especially in this case, by Mr. Barnewall, I cannot, upon principle,
make any difference between words written and words spoken, as
to the right which arises on them of bringing an action. For the
plaintiff in error it has been truly urged, that in the old books and
abridgments no distinction is taken between words written and
spoken. But the distinction has been made between written and
spoken slander as far back as Charles the Second's time,^ and the
' difference has been recognized by the courts for at least a century
back. It does not appear to me that the rights of parties to a good
character are insufficiently defended by the criminal remedies which
the law gives, and the law gives a very ample field for retribution
by action for words spoken in the cases of special damage, of words
spoken of a man in his trade or profession, of a man in office, of a
magistrate or officer ; for all these an action lies. But for mere gen-
eral abuse spoken no action lies. In the arguments both of the



slanderous per se. Woodbury v. Thompson, 3 N. H. 194 (1825), though if
they be so actionable, it should, if proved, be considered in assessing the dam-
ages, Adams v. Smith, 58 111. 417 (1871).
^King v. Lake, Hardres 470 (1690).



THORLEV Z'. LORD KERRV. 827

judges and counsel, in almost all of the cases in which the question
has been, whether what is contained in a writing is the subject of an
action or not, it has been considered, whether the words, if spoken,
would maintain an action. It is curious that they have also adverted
to the cjuestion, whether it tends to produce a breach of the peace :
but that is wholly irrelevant, and is no ground for recovering dam-
ages. So it has been argued that writing shews more deliberate
malignity ;- but the same answer suffices, that the action is not main-
tainable upon the ground of the malignity, but for the damage sus-
tained. So, it is argued that written scandal is more generally dif-
fused than words spoken, and is therefore actionable ;■* but an asser-
tion made in a public place, as upon the Royal Exchange, concern-
ing a merchant in London, may be much more extensively diffused
than a few printed papers dispersed, or a private letter: it is true
that a newspaper may be very generally read, but that is all casual.
These are the arguments which prevail on my mind to repudiate the
distinction between written and spoken scandal ; but that distinction
has been established by some of the greatest names known to the
law, Lord Hardwicke, Hale, I believe, Holt, C. J., and others. Lord
Hardwicke, C. J., especially has laid it down that an action for a
libel may be brought on words written, when the words, if spoken,
would not sustain it. Co. Dig. tit. Libel, referring to the case in
Fitzg. 122, 253, says, there is a distinction between written and
spoken scandal, by his putting it down there as he does, as being the
law, without making any query or doubt upon it, we are led to sup-
pose that he was of the same opinion. I do not now recapitulate
the cases, but we cannot, in opposition to them, venture to lay down
at this day, that no action can be maintained for any words written,
for which an action could not be maintained if they were spoken :
upon these grounds we think the judgment of the Court of King's
Bench must be affirmed. The purpose of this action is to recover a
compensation for some damage supposed to be sustained by the
plaintiff by reason of the libel. The tendency of the libel to provoke
a breach of the peace, or the degree of malignity which actuates the
writer, has nothing to do with the question. H the matter were for
the first time to be decided at this day, I should have no hesitation
in saying, that no action could be maintained for written scandal
which could not be maintained for the words if they had been
spoken.

Judgment affirmed.*

'See Hale. C. J., in King v. Lake, Hardrcs 470 (1690).

Mn Ilannaii v. Dclany, Fitzgibbon 253 (1763), it was said "that words
published in writing will be actionable, though not when barely spoken." The
italics are the editor's.

* Accord: McCorklc v. Bijuis, 5 Binney 340 (Pa. 1812), "any malicious
printed slander, which tends to expose a man to ridicule, contempt, hatred or
degradation o-t character, is a libel", per Tilghman, C. J., p. 348; Adams v.
La7Vsou, 17 Grat. 250 (Va. 1867) : Miller v. Butler. 6 Cush. 71 (.Mass. 1850) :
Bradley v. Cramer, 59 Wis. 309 (1884) ; Merchants' Insurance Co. v. Buckner.
98 Fed. 222 (C. C. A. 1899), and cases cited, p. 227: see also Odgers, Slander
and Libel, 3rd ed., pp. 3 & 4; Townsend on Slander and Libel, 4th ed., pp. 11
& 12; and cases given in 32 \m. Dig., Cent. Ed., 1854 to 1859.



828 PECK V. TRIBUNE COMPANY.

^ PECK V. TRIBUNE COMPANY.

Supreme Court of the United States, 1909. 214 U. S. 185.

Holmes, J. This is an action on the case for a Hbel. The Hbel
alleged is found in an advertisement printed in the defendant's news-
paper, The Chicago Sunday Tribune, and so far as is material is as
follows : "Nurses and Patients Praise DutTy's — Mrs. A. Schuman,
One of Chicago's Most Capable and Experienced Nurses, Pays an
Eloquent Tribute to the Great Invigorating, Life-Giving and Cura-
tive Properties of Duffy's Pure Malt Whiskey * * *" Then
followed a portrait of the plaintiff, with the words "Mrs. A. Schu-
man'' under it. Then, in cjuotation marks, "After 3^ears of constant
use of your Pure Malt Whiskey, both by myself and as given to pa-
tients in my capacity as nurse, I have no hesitation in recommend-
ing it as the very best tonic and stimulant for all weak and rundown
conditions," &c., with the words "Mrs. A. Schuman, 1576 Mozart
St., Chicago, 111.," at the end, not in quotation marks, but conveying
the notion of a signature, or at least that the words were hers. The
declaration alleged that the plaintiff was not j\Irs. Schuman, was
not a nurse, and was a total abstainer from whisky and all spir-
ituous liquors. There was also a count for publishing the plaintiff's
likeness without leave. The defendant pleaded not guilty. At the
trial, subject to exceptions, the judge concluded the plaintiff's testi-
mony in support of her allegations just stated, and directed a verdict
for the defendant. His action was sustained by the Circuit Court of
Appeals. 154 Fed. 330, 83 C. C. A. 202.

Of course the insertion of the plaintiff's picture in the place and
with the concomitants that we have described imported that she was
the nurse and made the statements set forth, as rightly was decided
in IVandt v. Hearst's Chicago American, 129 Wisconsin 419-421.
Morrison v. Smith, lyy N. Y. 366. Therefore the publication was
of and concerning the plaintiff, notwithstanding the presence of an-
other fact, the name of the real signer of the certificate, if that was
Mrs. Schuman, that was inconsistent, when all the facts were known,
with the plaintiff's having signed or adopted it. Many might recognize
the plaintiff's face without knowing her name, and those who did
know it might be led to infer that she had sanctioned the publication
under an alias. There was some suggestion that the defendant pub-
lished the portrait by mistake, and without knowledge that it was the
plaintiff's portrait or was not what it purported to be. But the fact,
if it was one, was no excuse. If the publication was libellous the de-
fendant took the risk. As was said of such matters by Lord Mans-
field, "Whatever a man publishes he publishes at his peril," The

Louisiana refuses to follow the common-law distinction between written
and spoken defamation; Milter v. Holstein, 16 La. 395 (1840); Tarleton v.
Lacjcirde, 46 La. Ann. 1368 (1894).

Some American courts hold, following Townsend on Slander and Libel,
§ 180, that written language affecting the plaintiff solely in his trade or pro-
fession is governed by the same rules as spoken words, see Standard v. JJ'ilco.v



PECK V. TRIBL'NE COMPANY. 829

King V. Woodfall, Lofft, yyG, 781. See further, 1 1 came v. Stozvell,
12 A. & E. 719, 726; Shcphcard v. IVhitaker, L. R. 10 C. P. 502;
Clark V. A'or^A American Co., 203 Pa. St. 346, 351, 352. The reason
is plain. A libel is harmful on its face. If a man sees fit to pul^lish
manifestly hurtful statements concerning an individual, without
other justification tlian exists for an advertisement or a piece of
news, the usual principles of tort will make him liable, if the state-
ments are false or are true only of some one else. See Morasse v.
Brocliu, 151 ^Massachusetts, 567^ 575.

The question, then, is whether the publication was a libel. It
was held by the Circuit Court of Appeals not to be, or at most to
entitle the plaintiff only to nominal damages, no special damage be-
ing alleged. It was pointed out that there was no general consensus
of opinion that to drink whisky is wrong or that to be a nurse is
discreditable. It might have been added that very possibly giving a
certificate and the use of one's portrait in aid of an advertisement
would be regarded with irony, or a stronger feeling, only by a few.
But it appears to us that such inquiries are beside the point. _ It may
be that the action for libel is of little use, but while it is maintained
it should be governed by the general principles of tort. If the ad-
vertisement obviously would hurt the plaintiff in the estimation of
an important and respectable part of the community, liability is not
a question of a majority vote.

We know of no decision in which this matter is discussed upon
principle. But obviously an unprivileged falsehood need not entail
universal hatred to constitute a cause of action. No falsehood is
thought about or even known by all the world. No conduct is hated
by all. That it will be known by a large number and will lead an
appreciable fraction of that number to regard the plaintiff with con-
tempt is enough to do her practical harm. Thus if a doctor were
represented as advertising, the fact that it would afifect his standing

and Nichols v. Daiiv Rep. Co., note 2 to Ireland v. McGarvish, ante; but see as
to this Merchants 'Insurance Co. v. Buckner. 98 F"ed. 222 (C. C. A. 1899) :
Weiss V. ]]'hittenwre. 28 Mich. 366 (1873), per Christiancy, J., p. 377; Dal-
lavo V. Snider, 143 Mich. 542 (1906).

In a very learned and interesting essay on the History of the Law of
Defamation, 3 Select Essays on Anglo-American Legal History, 446. 3 Col.
L. R. 546 (1903), Van Vechtcn Veeder, Esq., sets forth the steps by which
the King's Court acquired jurisdiction over slander and libel, the manner in
which libel became a criminal offense and the origin of the distinction be-
tween spoken and written defamation. He points out that the Roman Law.
from which, he says, the Court of Star Chamber took its law of libel, had
two actions for defamation, one of the action de injuria, a merely civil
action for a money penalty, including both punishment and compensation,
which lay for defamatory" statements made in private, and the action de
libel lis famosis, for accusations, usually anonymous epigrams and scurrilous
ballads, publiclv sung or scattered about the streets, which were severely
punished and iii which truth was no justification. He suggests that the Eng-
lish courts lost sight of the Roman law distinction, based on the character
of the defamatory matter, the publicity given it and its anonymity, and sub-
stituted a distinction based on speech and writing, probably because the
earliest cases, analogous to those to which the action de libellis famosis
applied, were written cases of anonymous and scurrilous political tracts, bal-
lads and pamphlets.



830 PECK Z'. TRIBUNE COMPANY.

with others of his profession might make the representation action-
able, akhough advertising is not reputed dishonest and even seems
to be regarded by many with pride. See Martin v. The Picayune,
115 Louisiana 979. It seems to us impossible to say that the obvious
tendency of what is imputed to the plaintiff by this advertisement is
not seriously to hurt her standing with a considerable and respect-
able class in the community. Therefore it was the plaintiff's right
to prove her case and go to the jury, and the defendant would have
got all that it could ask if it had been permitted to persuade them,
if it could, to take a contrary view. Culmer v. Canby, loi Fed. 195,
197; Tzi'onibly v. Monroe, 136 ^Massachusetts 464, 469. See Gates
y. A'ezv York Recorder Co., 155 N. Y. 228*

It is unnecessary to consider the question whether the publica-
tion of the plaintiff's likeness was a tort per se. It is enough for the
present case that the law should at least be prompt to recognize the
injuries that may arise froman unauthorized use in connection with
other facts, even if more subtilty is needed to state the wrong than
is needed here. In this instance we feel no doubt.

Judgment reversed.^

"■Accord: Foster-Milhurn Co. v. Chinn, 134 Ky. 424 (1909), held to be
libel to publish a forged recommendation of patent kidney pills purporting
to be signed b}' the plaintiff, a prominent Kentucky horseman.

A statement may be defamatory if published in one place but not if pub-
lished in another, since the public in the one may regard the act or attribute
imputed to the plaintiff as sufficiently serious to hurt his standing in the
community, while in the other, public opinion may regard it as a trivial
fault or even as meritorious, so a charge of killing foxes was held actionable
if published in a hunting count}- of England, Foulger v. Ncwcomh, L. R. 2
Exch. 327 (1867). and see the diversity of decision as to the libelous char-
acter of words. So an act which at one period was regarded as innocent or
even meritorious may be condemned by public opinion of another, and the
meaning of words notoriously change from time to time and differ in one
place and another, Row v. Clargis, T. Raymond, 482 (1682), statement
made in time of Charles II that the plaintiff, a deputy lieutenant, was a
"papist". Compare the cases of Collins v. Carnegie, 1 A. & E. 695 (1834), and
Dakhyl v. Labouchere, L. R. 1908. 2 K. B. 325 n., the one holding that the
word "quack" was not libelous, the other that it was ; and on the whole
subject, see Bower, Code of Actionable Defamation, pp. 288-292.

So, at least in the southern states of the United States, it is held libel-
ous to accuse a person of being a negro or of negro blood, Upton v. Times-
Democrat Publishing Co., 104 La. 141 (1900), where by a typographical error
a statement that the plaintiff was a "cultured gentlcm.an'' was printed to read
a "colored gentleman"; Flood v. News & Courier Co., 71 S. Car. 112 (1904) ;
and in the days of negro slavery it was held in some cases that such state-
ments were even slanderous without proof of special damage, Eden v. Le-
gare, 1 Bay 171 (S. Car. 1791) ; Dobard v. Nunez. 6 La. Ann. 294 (1851) ;
contra, Barrett v. Jarvis, 1 Tapp. 244. note (Ohio 1817) ; Johnson, v. Brown,
4 Cranch C. C. 235 (D. C. 1833) : McDowell v. Bowles. 53 N. Car. 184 (N.
Car. 1860) ; Williams v. Riddle, 145 Ky. 459 (1911), 36 L. R. A. (N. S.) 974.
with valuable note.

The relationship between two parties may be such that an accusation
against the one necessarily affects the personal character of the other. Vicars
V. Worth, 1 Strange 471 (1722), and Hodgkins v. Corbet, 1 Strange 545
ri723), where it was held that to call a married man a cuckold was tanta-
mount to calling the wife a whore; Maxwell v. Allison, 11 S. & R. 343 (Pa.
1824), semble; Huckle v. Reynolds, 7 C. B. (N. S.) 114 (1859), accusation
that the house of the plaintiff's wife was a bawdy-hoiise was actionable.



SCIIULTZ V. FRANKI-ORT MARINE &C. IXS. CO. 83I

u.c. ♦ ^

SCHULTZ V FRANKFORT MARINE, ACCIDENT & PLATE

GLASS INSURANCE CO.

Supreme Court of Wisconsin, 1913. 151 Wisconsin Reports, 537.

The plaintiff brouc^ht an action of conspiracy against the Frank-
fort Insurance Co., the manager of the Ricmer Detective Bureau,
and against John l\'iczkowski, a detective in the employ of the said
detective bureau, alleging conspiracy for the purpose of annoying,
harassing and intimickiting the plaintiff in order to get him to leave
the city of Milwaukee and refrain from testifying as a witness in
an action then pending against the insurance company. On the part
of the plaintiff evidence was introduced tending to show that the
insurance company employed the detective agency to shadow and
watch the plaintiff. It was shown that the detective agency advised
a rough and open shadowing of the plaintiff", and that this kind of
shadowing was employed to the knowledge of all the defendants and
with their consent. The evidence also tended to show that the de-
fendant was openly and persistently followed by two detectives, who
called the attention of all the plaintift"s neighbors to the fact that he
was being w^atched, and who made themselves unnecessarily con-
spicuous in their surveillance'of him.

Timlin, J.^ Omitting for the present all alleged acts of tres-
pass or eavesdropping and all alleged threats and slanderous words
and all alleged restraint of plaintiff's liberty, is any personal right

since, if true, he, as her husband, would be indictable as the keeper thereof;
and see Ryalls v. Leader, L. R. 1 Exch. 296 (1866), defamatory statements as
to the financial standing and conduct of the plaintiff's partner; but see
Loring, J., in Merrill v. Post Publishing Co., 197 Mass. 185 (19;^), intimating
that the plaintiff to recover must be mentioned by name. On the other hand
no one has a right to sue for slander or libel defamatory of another whether
living or dead, no matter how close the relationship between them, Sub-
baivar v. Kristnaixar, Ind. L. R. 1 Madras 383, brother suing for libel on
living sister; Sorcnscn v. Balaban, 11 App. Div. (X. Y.) 164 (1896), mother
suing for slanderous statements in regard to her deceased daughter. In
Merrill v. Post Publishing Co., 197 Mass. 185 (1908), it is however held that
if the plaintiff's name is mentioned as the brother of the person falsely ac-
cused, he may maintain an action.

It is not necessary that the statement should impute personal misconduct
to the plaintiff, so it is libelous to publish of a woman that she is illegiti-
mate, S'.elbv v. Sun Printing Co., 38 Hun 474 (N. Y. 1886). affirmed 109
N. Y. 611 (1886); Maxzi'ell v. Allison. 11 S. & R. 343 (Pa. 1824). semblc,
to call one a bastard is actionable slander if damage be shown to have fol-
lowed; but see Rockv Mountain Nezvs Co. v. Fridborn, 46 Colo. 440 (1909),
a newspaper stated that tlie plaintiff, who had been ravished eight months
before, had become a motlier, the statement, though false, was held not to be
libelous, but see the terms of the Colorado Statute defining libel.

As to what imputations are libelous, alwav3 a matter for the jury, see
Odgers, 3rd Ed., 18 to 32: Townsend, 4th Ed., 203 to 221; 32 Am. Dig., Cent.
Ed.. 1855 to 1866. It is for the court to say whether the words are suscepti-
ble of a libelous construction, for the jury to say whether they are libelous.

' Only so much of the opinion is given as relates to the defamatory char-
acter of the defendant's conduct.



832 SCHULTZ Z\ FRANKFORT MARINE &C. INS. CO.



K



violated by openly and publicly following and watching one? To
publish of and concerning a person words, pictures, or signs which
have a tendency to bring the person into public disrepute or into pub-
lic ridicule, contempt, and disesteem is an actionable wrong to his
reputation. Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268; Moley
V. Barager, yy Wis". 43, 45 N. W. 1082 ; Solvcrson v. Peterson, 64
Wis. 198, 25 N. \\. 14; IVandt v. Hearst's Chicago American, 129
Wis. 419, 109 N. W. yor It can scarcely be doubted that the
publication of a cartoon showing the plaintiff followed and watched
by detectives, who pursue and watch him by day and stand guard on
the sidewalk in front of his house at night, would, within Uie prin-
ciple of the foregoing cases, be an actionable libel — an injury to
plaintiff's reputation. How then can it be said that the acts which
the picture represents, accompanied with equal publicity, do not con-
stitute an injury to reputation? Can we say they are actionable
when represented by picture but nonactionable when actually com-
mitted? It must be conceded to publicly proclaim one suspect, to
publicly-eha4:gethat he deserves watching and that he is being fol-
lowed and watched, does subject him to public disrepute, ridicule,
anTconteiTipt. If so, the acts here complained of are the analogue
crfitbeTexcept the writing, printing, and passing around. But these
elements are supplied by the public, notorious, and continued charac-
ter of the surveillance. W'e must hold that rough or open shadowing
as 4Ttx£_d^scnbed_ajTdjM is an unlawful act resulting in legal in-
jury toThel^eputation of tlie person who is the object of such atten-
tiorrs7~?^ctuafpursuit and public surveillance of person and horne are
suggestive of criminality fatal to public esteem and productive of
public contempt orr idicu k. So, without taking up the question of
secret surveillance, which is not before us, we are impelled to hold
that on this ground a case was made for the jury. A conspiracy to
libel the plaintiff or to commit any other wrong to his person, repu-
tation, or property may, when damage follows, be the subject of a
civil action. White v. White, 140 Wis. 538, 122 N. W. 1051 ; Jones