Francis H. (Francis Hermann) Bohlen.

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V. Monson, 137 Wis. 478, 119 N. W. 179; Fisher v. Schuri, 73 Wis.
370, 41 N. W. 527 ; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846.^

^Any expression of defamatory imputations by pictures, caricatures, ef-
figies or marks upon his house, is a libel, Du Bost v. Bercsford. 2 Camp. 511
(1810) ; Levi v. Milne, 4 Bing. 195 (1827) ; see Corelli v. JVall, 22 Times L. R.
532 (1906), picture postcards of fictitious incidents in the life of a well-known
novelist; Monson v. Tussaud, 1 Q. B. 671 (1894) ; Jefferies v. Buncombe, 11
East 226 (1809), lamp, such as is usual in front of brothels, placed in front
of plaintiff's house; Mortimer v. McCallan, 6 M. & W. 58 (1840), per
Abinger, C. B., p. 68; Case "De LibeUis Famosis," 5 Coke 125 a (1605);
Steele v. Southwick, 9 Johns. 214 (N. Y. 1812).

So there may be a slander by a wink, a nod, a smile, or any other
transient gesture obviously calculated to convey a defamatory imputation, see
Campbell, L. C, in Walters v. Morgan, 3 De G. F. & J. 718 (1861), p. 734,
and Ellcnborough, C. j:, in 3 M. & S. 110 (1814), p. 114.

^ See the cases of Mingey v. Moody and Sir William Bolton v. Deane,
mentioned in Austin v. Culpepper, 2 Shower 313 (1684), one a case of "riding
Skimmington". the other of "carrying a fellow about with horns and bowing
at his (the plaintiff's) door"; see also the intervention of the Lord Charn-
berlain to prohibit actors "making up" as prominent public men, and Sir



BRODEKICK V. JAMES. 833

SECTION 3.
Publication.



U.C. -> 5



BRODERICK v. JA^IES.

Court of Common Pleas City of New York, 1871. 3 Daly's Common Pleas

Reports, 481.

Dalv, C. J. The words relied upon as defamatory, were spo-
ken by the defendant, Mrs. James, to the plaintiff, and there is noth-
ing in the case to show that they were heard by any one but the plain-
tiff. We must assume, in accordance with the judge's finding, who
was the one to judge of their respective credibility, that ]\lrs. James
said what the plaintiff testified to. There being no evidence, how-
ever, that it was heard by any one, except the plaintiff, the point is
presented, wdiether it was a publication. Being, res liova^ it is to be /^-^^^
determined by ascertaining with some preciseness the nature of the
injury, for which an action of this description will lie, and what is
a publication, that being essential to the cause of action. {Craft v.
Doite, I Saund. 242, n. i.)

The foundation of the action for defamation, whether libel or
slander, is an injury done to reputation; that is, that the person is
injured thereby in the estimation of others {Lyle v. Clason, i Caines
-:^^Z). It is said by March, the writer of the earliest English treatise
on the law of defamation, that where a man's reputation, which is
dearer to him than life, is endangered by scandalous words, the
oft'ender should be enforced by action to make composition (March
on Actions of Slander, First Part, Edition of 1655, p. 4) ; a passage
showing very plainly that it is the inj ury done to th e-Ig P'itntig n
which is the ground of the action. Now, no injury is done to a ^^
person's reputation unless the oft'ensive words are uttered to, or in
the pr^^nce and hearing of, a third person, and it is this which the
law ^~catt5 a p ublication.

"' Before r^l arch's book was written, it was decided, in an action
for oral defamation, that the averment for the cause of action must
be, or the language used by the pleader must imply, that the words
were spoken in praesentia et aiiditu aliorum. (Taylor v. Hozc, Cro.
Eliz. 861)/ from which it follows that if tittered only to the party

Henry Irving's successful appeal to the criminal law to punish an offensive
stage burlesque upon him— cited in Rower on Actionable Defamation, p. 23;
and Hvre v. Garlick. 42 Justice of the Peace 68 (Eng. 1878). burning in ef-
figy. As to whether such merely transient defamatory conduct should be
deemed slander or libel, see Bower on Actionable Defamation, pp. 22-23.

^ It was decided in that case that it was enough to aver that it was in
praesentia divcrsortim. "for it shall be necessarily presumed that it was i«
aiiditu," ace.. Brozvn v. Brasliier. 2 P. & W. 114 (Pa. 1830). It is not neces-
sary that the speaker shall be in the sight of the auditor, it is enough that he
being in another room hears the words "and knows who speaks, what he
speaks and of whom he speaks", Desmond v. Brown. 33 Iowa 13 (1871).



834 ADAMS V. LAWSON.

himself, and not in the hearing of others, there is no pubHcation ;
for no injury can arise thereby to the party's reputation, unless it
is produced by his communicating to others that which was said re-
specting him. Indeed, the general word which is employed both for
libel and slander, "defamation," is of itself sufficiently explanatory,
being derived from two Latin words — de, of, and jama, the talk of
the multitude.

In Hick's Case (Hob. 215), it was held that no action would
lie for sending a sealed letter containing scandalous matter to the
person to whom it applied, and to wdiom the letter was addressed,
upon the ground that this was not a publication ; though it was an
act for wdiich an indictment would lie, as tending to stir up strife,
produce quarrels and lead to a breach of the peace, (Rex v. Weg-
ener, 2 Starkie N. P. 245; 2 Hawkins' P. C. 356, § ii ; March on
Actions of Slander, 24). In Philips v. Jansen (2 Esp. R. 625), Lord
Kenyon held that, to make a private letter a libel, it must be ad-
dressed to a third person, not to the party himself, and the letter in
that case having been sent by the defendant to the plaintiff, the plain-
tiff w^as nonsuited.

It has frequently been held that if the words were uttered in a
foreign language, in the presence and hearing of others, it is neces-
sar}' to show that they understood the language, or otherwise there
is no publication, or, to express it in the language of Hobart, "Slan-
derous words in Welsh bear no action, except you affirm that they
were spoken in the hearing of them that understogd the Welsh
tongue." (Fleetzvood v. Ciirley, Hob. Rep. 268a; Gibs v. Jenkins,
Id. 191a ; Gibs v. Davie, Id. 8 ; Jones v. Davers, Cro. Eliz. 496 ; IVor-
mouth V. Cramer, 3 Wend. 394 ; Amann v. Damm, 8 Com. B. N. S.
597; Danver's Amb. 146, pp. i, 2; Viner's Abm. Action for Words,
A. G.)^ These authorities show that to constitute a publication in
an action for oral defamation, the words must be heard and under-
stood by some person other than the one to whom they were ad-
dressed. There was no proof in this case that the words were heard
by any one but the plaintiff, and the judgment should, therefore,
have been given for the defendant.^



ADAMS z'. LAWSON.

Court of Appeals of Virginia, 1867. 17 Grattan 250.

JoYNES, J. The next question is, whether the evidence set forth
m the first bill of exceptions was properly admitted. After proving
that the defendant delivered the letter to a witness, folded up and



'^Accord: Price v. Jenkings, Cro. Eliz. 865 (1591) ; Kiene v. Ruff, 1
Iowa 482 (1855) ; Rich v. Scalio. 115 111. App. 166 (1904) ; Mielens v. Quas-
dorf, 68 Iowa 726 (1886). But the presumption is that a local newspaper
printed in a foreign language is understood by its local readers, Steketee v.
Kimm, 48 Mich. 322 (1882), though in Price v. Jenkings, Cro. Eliz. 865
(1591), the court did not presume that residents of Monmouthshire, orig-
inally a part of Wales, understood Welsh.

^Accord: Frank v. Kaminsky, 109 111. 26 (1884); Sheffill v. Van Deu-



ADAMS V. LAWSOX. 835

sealed, and requested him to deliver it to the plaintiff, whiFhAJicdicK,
and after the letter had been read to the jury, the plaintiff introduced
another witness, who testified that the defendant stated to him, in
the presence of other persons, that he had sent a letter to the plain-
tiff; that he had got Thomas P>. Woolwine to write the letter for
him, and that he (the defendant) had signed his own name to it, and
kept a copy ; and that the defendant, at the same time, stated to the
witness the contents of the letter, but without producing it, or a copy
of it. Evidence was introduced tending to show that the letter thus
referred to was the one on which the action is founded.

This evidence was, of course, offered to prove the publication
of the libel, and the question is whether it was admissible for that
purpose. To constitute a publication it is not necessary that the con-
tents of the writing should be made known to the public generally.
It is enough, it is said, if they are made known to a single person.
Holroyd, J., 6 Eng. C. L. R. 375. They were made known to Wool-
wine, who wrote the letter at the request of the defendant. The de-
fendant adopted and sanctioned what Woolwine wrote at his in-
stance and request, and if the defendant's signature to the letter was
necessary to render the act complete, there was evidence from which
the jury might have inferred that the signature was attached in the
presence of Woolwine. I\Iy impression is that there was a sufficient
publication to Woolwine stated in this evidence to maintain the
action. The subsequent repetition of the contents of the letter was
undoubtedly a publication. In the case de liheUis famosis, 5 Rep.
125, it is said that publication may be "verbis ant cantilenis, as when
the libel is maliciously repeated or sung in the presence of others."
In Lamb's case, 9 Rep. 59, it is said, that if any one who has read a
libel, or heard it read, repeats it, or any part of it, in the hearing of
others, that is a publication.^ In Bac. Abr. Libel B. this is laid down
as undisputed law. The court did not err, therefore, in receiving the
evidence.^



sen, 13 Gray 304 (]\Iass. 1859) ; Comcrford v. West End R. Co., 164 Mass. 13
(1895).

^To call attention to a libelous placard written bv another has been held
publication, Hird v. JVood. 38 Sol. Journ. 234 (Eng. 1894).

" The same rule applies in slander, Marble v. Cliapin, 132 Mass. 225
(1882), and it is immaterial that the auditor knows the words to be false,
being in fact the woman with whom the defendant accused the plaintiff of
having committed adultery, Marble v. Chapin, 132 Mass. 225 (1882), or are
members of the plaintiff's family. Miller v. Johnson, 79 III. 58 (1875). In
Hammond V. Stewart, 72 111. App. 512 (1897), it was held a publication to call
a woman "a whore" in the presence of her children, all under six years
of age.

To address a letter or to speak to a wife words defamatory of her hus-
band is sufficient publication, U'euman v. Ash, 13 C. B. 836 (1853) ; such an
act "is an attempt to poison the fountain of domestic peace, conjugal affec-
tion and filial obedience at its verv source", Schenck v. Scheiick, 20 N. J. L.
208 (1843); Jlllcox v. Moon, 61 Vt. 484 (1889); Luick v. Driscoll, 13 Ind.
App. 279 (1895), and though there are no decisions in point, a similar com-
munication to a husband in regard to his wife would seem equally a publica-
tion, though see Jervis, C. J., in W'cnman v. Ash, 13 C. B. 836 (1853). On the
other hand for a defendant to communicate to her husband or his wife matter



836 THOMAS M. RUMNEV Z'. DANIEL E. WORTHLEY.

THOMAS .AI. RUM KEY z: DAXIEL E. WORTHLEY.

Supreme Judicial Court of Massachusetts, 1905. 186 Massachusetts

Reports 144.

Knowlton, C. J. The only question reserved in this report
is whether there was any evidence of pubUcation of the Hbels, or
either of them, contained in tlie two letters addressed by the de-
fendant to the plaintiff. These letters were sent by mail in the
ordinary way, addressed to the plaintiff at No. 12 Burtt Street,
Lowell, which was his place of residence. His wife conducted a
grocery store which was attached to the dwelling-house at No. 14
Burtt Street, she having filed a certificate, under the provisions of
the Pub. Sts. chap. 147, § 11, that she was doing business as a mar-
ried woman. The plaintiff acted as her agent in conducting the
business, and his daughter, twenty-three years of age, was a clerk
in the store.

Sending a libellous letter through the mail to the person libelled,
with no reason to suppose that it will be opened and read by any
one else before he has received and read it, is not a publication
which will support a civil action for libel. Clntterbuck v. Chaffers,
I Stark. 471. Delacroix v. Thevenot, 2 Stark. 63. Robinson v.
Jones, 4 L. R. (Ir.) 391. Fonville v. M'Nease, Dudley (S. Car.)
303. Fry V. McCord, 95 Tenn. 678. Sylvis v. Miller, 96 Tenn, 94.
Spaits V. Poundstone, 87 Ind. 522. Mcintosh v. Motherly, 9 B.
]\Ion. 119. Warnock v, Mitchell, 43 Fed. 428. In criminal prose-
cutions for libel, the rule is generally held differently. The ques-

defamatory to the plaintiff is not a publication, either because such com-
munications are sacred, per Manisty, J,, in Wennkak v. Morgan, L. R. 20
Q. B. D. 635 (1888) ; Seslcr v. Montgomery, 78 Cal. 486 (1889), or because
the two are regarded in law as one person. In State v. Shoemaker, 101 N.
Car. 690 (1888), was held that this did not hold when the words were not
spoken in confidence between the two but were addressed in a loud tone to a
third party by the one in the presence of the other; and see Jones v. Thomas,
34 W. R. 104.

Where a letter-press copy is made by a copying clerk, which is a purely
mechanical process, there is not necessarily any publication, it depends upon
whether the clerk knew the contents, Odgers on Libel and Slander, 3rd ed.
174; Western Union Tel. Co. v. Cashman, 149 Fed. 367 (1906), semhle. On
the other hand dictation to a stenographer is held to be a publication in Pull-
man v. Hill, L. R. 1891, 1 Q. B. D. 524; Cambrill v. Schoolev, 93 Md. 48
(1901) ; and Ferdon v. Dickens, 161 Ala. 181 (1909), p. 187, semhle; but see
Ozven v. Ogilvie Pub. Co., 32 App. Div. (N. Y.) 465 (1895), where it was held
that a dictation by the general manager of a corporation to a stenographer
employed by it of a libelous letter in reference to business, was not a publi-
cation by the corporation, since the two were but servants jointly engaged in
the single act of producing the letter.

The writing of a telegraphic message and its delivery to a telegraph
clerk for transmission is a publication. JVilliamson v. Freer, L. R. 9 C. P.
393 (1874); Peterson v. Western Union Tel. Co., 65 Minn. 18 (1896). 72
Minn. 41 (1898), even though the transmission is by ear; Monson v. Lathrop,
96 Wis. 386 (1897) ; or sending a post-card, Robinson v. Jones, 4 L. R. Tr.
391 (1879), or having defamatory matter printed, though it never be dis-
tributed, since the compositor mast read it • Baldwin v. Elphinstone, 2 W. Bl.
1037 (1775).



THOMAS M. RUMXEV V. DANIEL E. VVORTIILEY. 837

tion in this case is whether there was any evidence which would
have warranted the jury in finding that the defendant heUeved or
had good reason to believe, that the letters might be opened and
read by the plaintiff's daughter in his absence, and that she was au-
thorized to open her father's letters. The cjuestion of difficulty is
whether there was evidence that the defendant was aware that she
was accustomed or authorized to read such letters, addressed to her
father. On this point the testimony is very unsatisfactory. She
testified that she had known the defendant for five years; that he
came to the store a great many times for the purpose of selling
goods ; that during the year immediately prior to the receipt of
these letters he had seen her at least two or three times receive mail
addressed to her father and open it in his presence ; that she knew
this had happened several times ; and that she could not state the
exact number of times; that he had seen her, after opening the
letters, walk with them to her father and show him the contents of
them. Without repeating her testimony on this point, which was of
considerable length, we are of opinion that the jury fairly might
have inferred from it that, as clerk in the store which was owned
by her mother and conducted by her father, she was accustomed to
open letters addressed to him, at least if they looked like letters
pertaining to the business, and that the defendant knew it. Printed
on the face of the libellous letters w^ere these words : "In five days
return to D. E. Worthley, 27 Canada Street, Lowell, Mass." This
was the defendant's business address. We infer that the letters
appeared externally like the ordinary business letters of the de-
fendant. We do not attach much importance to the fact that they
were addressed to Xo. 12 Burtt Street instead of No. 14 Burtt
Street, for the dwelling-house and store were connected. If the
case stood upon the testimony in direct examination, we should think
the jury w^ell might infer knowledge on the part of the defendant
that the plaintiff's daughter was accustomed to open letters which
looked like these, and, with considerable hesitation, wx are inclined
to think that the cross-examination, taken in connection with the
direct examination, would warrant the jury in coming to the sani£^
conclusion. Ifhe sen^tl2ejetters, h a\'ing good reasorL lQ-helieye that /
thev were litTeTy^o be ^pened~"Wlm authorized person otherthan 1
tHe^plaintiff, his sending them by mail was a publication.^ ^y^

Verdict set aside.



^Accord: Delacroix v. Thez'ciwt, 2 Stark. 56 (1817), letter addressed to
plaintiff's business address and not marked private opened by his clerk; Pull-
man V. Hill, L. R. 1891, 1 Q. B. D. 524, letter addressed to plaintiffs as a firm
instead of as individuals opened by a clerk; Allen v. Wortham. 89 Ky. 485
(1890), letters written to persons known to be illiterate, read for them by
others; Schmuck v. Hill, 2 Nebr. (Unof.) 79, 96 N. W. 158 (1901), see also.
Tlwrley v. Kerry, ante. But the author of a libel is not answerable for its
dissemination by others without his consent, Jl'cir v. Hoss, 6 Ala. 881 (1844) ;
nor for publicity given to it bv the plaintiff' after he receives it, Barrozv v.
Lewellin, Hob. 62 (1615); Fonvillc v. McNease, Dudley 303 (S. Car. 1838),
though the defendant may have recklessly thrown the letter into a vacant lot;
Wilcox v. Moon. 64 Vt. 484 (1889), letter addressed to husband, opened by
him and read bv himself and wife together.

The case of Callan v. Gaylord, 3 Watts 321 (Pa. 1834), intimates that



838 FOX Z'. BRODERICK.

FOX r. BRODERICK.
Court of Queen's Bench of Ireland, 1864. 14 Ir. C. L. R. 453.

Fitzgerald, B.

Action of libel. The defendants wrote to the plaintiff a letter
containing- defamatory statements. By mistake it was addressed
to and opened and read by one Keevil.

A defence pleaded to the action, states certain facts by which
the defendant was induced to believe, and did believe, the truth of
the charge. It avers that the publication complained of was in the
form of a letter, written by the defendant, and intended by the de-
fendant to be transmitted through the post to the plaintiff only, and
to be read by him only. That the letter was written bona fide for
the sole purpose of enforcing a settlement or explanation from the
plaintiff. That it was published on the honest and bona fide belief
of the truth of the charge, and without malice. That the letter
when written was enclosed in an envelope securely sealed, and so
that it could not be read without forcing open the envelope. _ That
the defendant unwittingly, and by honest oversight and mistake,
and not otherwise, instead of directing the letter to the plaintiff at
Keevil's address, directed it to Keevil at such address, and so posted
it. That the error so committed was an honest and bona fide mis-
take or oversight of the defendant, and was not made nor occa-
sioned designedly, or from or by reason of any indirect motive or
design, or wilful neglect or default of the defendants. That the
publication complained of was the delivery, through the Post-Office,
to Keevil of the letter intended for the plaintiff solely, but so erron-
eously addressed to Keevil, by whom it was opened.

There is then an averment, that the mistake committed by the
defendant was not discovered by him till after the letter had been
so delivered and published.

To this defence there is a demurrer, and the question for our
consideration is, whetner the pleading can be sustained.

The decision of Lord Campbell, in the case of Harrison v.
Bush (5 B. & E. 344), was also referred to, on which that learned
judge declines to express any opinion whether or not an action
could be sustained, if one, asked by letter for the character of a
servant, should bona fide write an answer, stating- acts of dishonesty
and immorality committed by the servant, and, by mistake, address
it to another person different from the inquirer, although of the
same name.

I am of the opinion that the defendant's pleading cannot be
sustained.

The vice of the defendant's argument appears to me to consist



one who posts a libelous letter to one other than the plaintiff is liable no mat-
ter who takes it out and gives it publicity; if the defendant throws a libelous
letter, though sealed, into a vacant lot he would be liable if the curiosity of
the finder led him to open it; Fonvilte v. McNease, Dudley 303 (S. Car.
1838), p. 312, per Richardson, J.



MC PIIERSOX V. DANIELS. 839

in supposing-, either that a voluntary and intentional publication of
defamatory matter, to the party defamed alone, is not a publication
from which malice may be inferred, because no civil action can be
sustained on it, or that the publication to such party alone is a
privileged communication.

The matter contained in the letter in question is admittedly
defamatory ; its publication to the plaintiff was admittedly intended ;
and with that view the defendant voluntarily and intentionally parted
with the possession of the letter and put it out of his own control.
Had the publication taken place in the mode intended, the legal
inference of malice would, in my opinion, have arisen as in a crim-
inal ])rosccution for a libel so published ; and the only reason why
a civil action could not be sustained is, that such malicious publica-
tion would have no tendency to injure the plaintiff's reputation.
But the defendant, where his voluntary and malicious a^t in part-
ing with the possession of the letter is so done, though by accident,
as to have that tendency, cannot rely, as rebutting malice, on the
absence of intention to give the plaintiff* a remedy by civil action.

Again, it is wholly a mistake to suppose that the voluntary pub-
lication of defamatory matter, to the party defamed only, is a
privileged communication, though it may give no right of civil
action, for it may be made a subject of criminal prosecution.

In the case of the King v. Paine, supposing it correctly re-
ported, the uttering or parting with the possession of the defamatory
writing was not voluntary or intentional on the part of the writer ;
he never intended to put it out of his own control at all.

In the case supposed by Lord Campbell, and in which he ex-
presses no opinion, the occasion of publication would have been a
privileged one ; and, but for the mistake, the legal inference of
malice would have bee\i rebutted.

In the case before us, the publication intended would not have
been privileged ; and even, though there had been no mistake, the
legal inference of malice would have arisen ; and what the defend-
ant really relies on is the absence of intention to give the plaintiff
a civil remedy for his malicious act.

In my opinion, that cannot avail him ; and I think therefore that
the demurrer ought to be allowed. I abstain from expressing my
opinion on points of form merely.

Hughes, B., concurred.



(a) Repetition and dissemination of defamatory statements of

others.
L»- C. » 3

McPHERSOX z: DANIELS.

Court of Ki)tgs Bench, 1829. 10 Baniewall & Cresswell's Rep. 263.

An action of slander for imputing that the plaintiff' was insolv-
ent. The defendant pleaded that one T. W. Woor had previously
spoken the said words and that when he, the defendant, spoke them.



840 MC PIIERSON !•. DANIELS.

he stated that he had heard and l)een told them from and hy the
said \\'oor. General demurrer and joinder.

LiTTLEDALE, J. For the reasons already given by my Brother
Baylcy,^ I think that the plea is bad ; but with reference to the
resolution in Lord Northampton's case, I will say a few words.
That resolution has been frequently referred to within the last thirty
years, and though not expressly overruled has been generally dis-
approved of. The latter part of that resolution is extrajudicial,
for it was not necessary to come to any resolution respecting private
slander in the Star Chamber. It is somewhat inconsistent with the