Francis H. (Francis Hermann) Bohlen.

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plaintiff in their article. Some question was raised both at the trial
and on the appeal before us as to the possibility of there being other
individuals in the employment of the defendant company who were
actuated by express malice towards the plaintiff, but for the purpose
of my judgment, I assume that there was no proof of malice in fact
on the part of any agent or servant of the defendants. The plain-
tiff called five witnesses who stated that upon reading the article
thev thought that it referred to the plaintiff, and the plaintiff was
prepared to call further witnesses to give evidence to the same eff'ect,
but, at the suggestion of the learned judge, he abstained from call-
ing them.

It was contended by the defendants that inasmuch that it must
be taken that there was no intention to refer to the plaintiff, and
that the only words which could connect the article with him were
the name Artemus Jones, the action could not be maintained, in-
asmuch as the plaintiff failed to prove that the defendants falsely
and maliciously published the libel of and concerning the plaintiff;
but this contention, in my opinion, involves a fallacy. If an untrue
and defamatory statement in writing is published without lawful
excuse, and in the opinion of the jury upon the evidence it refers
to the plaintiff, the caiise of action is made out : see notes to Bidlen
V. Leake, 3rd ed., p. 304. No one doubts that the avennent that the


libel was written of and concerning the plaintiff is a material aver-
ment. The authorities cited by my brother Fletcher Aloulton estab-
lish that proposition, but in my opinion no authorities are necessary;
it has been so held for generations ; but here the averment was made,
and the question is whetiicr the averment was proved ; and that, as
well as the innuendo founded thereon, was for the jury upon the
evidence. At the conclusion of the plaintiffs case, yir. Langdon,
who was then the leading counsel for the defendants, submitted that,
as the name Artemus Jones was a fictitious name, coined by the
writer of the article, and not intended to refer to any particular in-
dividual at all, it was not a libel on anybody, and a fortiori not on
the plaintiff himself. The learned judge ruled that, if a person
chooses to publish a thing of this description, the question is not
whether the man really intended it, but whether it v.-ould be under-
stood by readers to apply to a particular person, adding that, if
sensible readers would see at once that it was only an imaginary
thing, if any one reading it would see that it did not refer to a gen-
tleman who happened to bear the name of Artemus Jones, it would
not be a libel, but if he would think the contrary, that it did not
refer to an imaginary person, but to a real individual, the action
might be maintained.

It is in my opinion clearly established by authorities, to some of
which I will refer, that the question, if it be disputed, whether the
article is libel upon the plaintiff', is a question of fact for the jury;
and in my judgment this question of fact involves not only whether
the language used of a person in its fair and ordinary meaning is
libelous or defamatory, but whether the person referred to in the
libel would be understood by persons who knew him to refer to the

It seems to me that a very brief consideration will show that
on principle this must be so. Take the case of a libel which uses a
name ; that name may or may not be conclusive as to the person to
whom the libel is intended" to refer. Just in the same way. if the
liDel speaks of a person by description without mentioning the name
in order to establish a right of action the plaintiff* must prove to the
satisfaction of the jury that ordinary readers of the paper who knew
him would have understood that it referred to him. There is abun-
dant authority to shew that it is not necessary for every one to
know to whom the article refers ; this would in many cases be an
impossibility; but if, in the opinion of a jury, a substantial number
of per.sons who knew the plaintiff, reading the article, would be-
lieve that it refers to him, in my opinion an action, assuming the
language to be defamatory, can be maintained : and it makes no
difference whether the writer of the article inserted the name or
description unintentionally, by accident, or believing that no person
existed corresponding with the name or answering the description.
If upon che evidence the jurv are of opinion that ordinary sensible
readers, knowing the plaintiff, would be of opinion that the article
referred to him, the plaintiff's case is made out.

Dealing now with the authorities, it is, T think, beyond dispute


that, apart from the question of express malice, the intention or
motive with which tlie words are used is immaterial, and that, if
in fact the article does refer, or would be deemed by reasonable
people to refer, to the plaintiff, the action can be maintained, and
proof of express malice is wholly unnecessary.

Fletcher MoultOxN, L. J. The action for libel is a very ancient
action for a tort at common law. The essentials of such a cause ri
action appear from the well-known form of the declaration, a^^fqrm
which itself must have been in use for centuries. It ran thus : "That
the defendant falsely and maliciously wrote and published of and
concerning- the plaintiff the w^ords following, that is to say, he
(meaning"~the plaintiff) is," &c. To support such a declaration the
olaintift" must prove that the words alleged were written and pub-
lished of him by the defendant. Having satisfied this onus, he suc-
ceeds in the action if the words bear naturally a defamatory mean-
ng or must be understood in a defamatory sense by reason of cir-
cumstances attending the writing and publication ; for the law under
such circumstances presumes malice and damage, unless the occa-
sion was a privileged one or the defamatory matter true.

The important question is the issue which the jury has to de-
cide by its aid, which is, Aye or No, did the defendant write and
pubHsh the words of the plaintiff?

It is therefore, to my mind, settled law that a defendant is not
guilty of libel unless he wrote and published the defamatory words
*'of and concerning the plaintiff" — in other words, unless he in-
tended them to refer to the plaintiff. The ruling of the learned judge
in the present case is directly contrary to this.

To say that when the common law required it to be alleged and
proved that the defendant wrote and published the words of and
concerning the plaintiff it meant only that it must be shown that
some people might think so, is, to my mind, to give up all pretense
of interpreting language and arbitrarily to create new torts which
the law never did and does not now recognize as such.

The limitation of the action of defamation to cases where the
defendant has spoken or written the words "of and concerning the
plaintiff," is not an example of the weakness of common-law reme-
dies, but of their wisdom. It constitutes the protection of the inno-
cent individual from being held guilty of defaming others of whom
he has never intended to speak, and also from being himself de-
famed. On the one hand to hojd a person responsible for every
application that his words may bear in the minds of persons who
either possess knowledge that he does not possess or are ignorant
of that which he knows would be to put on him a burden too heavy
to be borne. But on the other hand it constitutes the protection of
the individual from being defamed* because it nullifies all attempts
to libel by language which as a matter of construction cannot refer
to the plaintifif, but which persons reading between the lines wtxild
understand to refer to him by reason of the surrounding circum-
stances. This is one of the most common forms of libel. No name
is mentioned, or some name other than that of the person really


meant is substituted. The surrounding circumstances are intention-
ally misdescribed. The reader, in order to discover the person re-
ferred to, must reject or alter part of that which is written. But all
these devices are in vain to shelter a libeller/ or because the issue is
not whether the langua,q;e is, as a matter of construction, applicable
to the i)laintiff, but whether the writer intended it to refer to the
plaintiff, and if he did so he is responsible if any one can discover
his intention, however much in words he may have striven to con-
ceal it.- This great and beneficial amplitude of the remedy is, how-
ever, only possible because the law makes the intention to refer to
the plaintiff the critical issue. If a man is to be liable for the inter-
pretation put by any person on his words, he must be entitled to re-
quire that it should' be an interpretation of his words as they stand.
He cannot be held responsiljle for what people may think to be his
meaning after rejecting such portion of his words as may not agree
with their interpretation. If a man who, judged by the language
actually used by him, has not referred to the plaintiff' may have
such portion of that language as they may think fit rejected as being
a mere blind by each set of readers, and the rest alone used for the
purpose of identification, and is to be held liable according to the
result of this process, then we have actually attained in our system
of legal procedure to the absurdity expressed in the well-known
farce where the magistrate solemnly warns the prisoners "Any
statement you may make will be taken down, altered, and used
against you."

In the first place I wish to point out that the only connection
of the words with the plaintiff' here is the identity of the name of
Artemus Jones. The learned judge has directed the jury that, if
the persons who knew the plaintiff" might suppose the plaintiff' to
be meant, they are to find for the plaintiff. It is obvious that this
would make the defendant equally liable to any other person of the

^ J' Anson v. Stewart, 1 T. R. 748 (1787) ; Fleefwood v. Curie. Cro. Jac.
557 (1619) ; Bourke v. Warren, 2 C. & P. 307 (1826) ; Le Fanu v. Malcom-
son, 1 H. L. C. 637 (1847), a newspaper article imputing that "in some of the
Irish factories cruelties were practiced on workpeople" held to be susceptible
of the innuendo, "in the factory of the plaintiffs", the jury having found a
verdict for the plaintiffs being satisfied that the paper was referring espe-
cially to their factory: Ha\s v. Bricrlv. 4 Watts 392 (Pa. 1835), per Gibson,
C. j", p. 395; Hart v. Cov, 40 Ind. 553 (1872). semhle : Steele v. Southzi.'ick,
9 Johns. 214 (N. Y. 1812) ; Weir v. Hoss, 6 Ala. 881 (1844) ; Palmer v. Ben-
nett, 83 Hun 220 (N. Y. 1894) ; Clark v. Creitzburgh, 4 McCord 491 (S. Car.

"See Lord Cottenham in Le Fanu v. Malcomson, 1 H. L. C. 62)7 (1847),
and Dressel v. Shipman. 57 Minn. 23 (1894); but see Lord Campbell in Le
Fanu V. Malcomson. 1 H. L. C 637 (1847).

Contra: Smith v. Ashley, 11 Mete. 367 (Mass. 1847), where it was held
that the publisher of a story intended by the writer thereof to defame the
plaintiff, could escape liability, by showing that he in good faith supposed iz
to be "a mere fancy sketch or fictitious story." This was put on the ground
that the publisher, if he had no knowledge that "the article published was
libelous, was guilty of no wrong", not on the ground that if libelous it was
not published of the plaintiff.

See the learned article on the principal case by Professor Jeremiah
Smith, 60 U. of Pa. Rev. (A. L. Reg.) 365-461 (1912).


name of Artemus Jones, for it is admitted that there is nothing else
in the description which points to the plaintiff, and in fact that the
remainder of the description is inapplicable to him. If this be the
law, then a person who makes a statement about Mr. A. B. which
is perfectly true, but which if not true would be libellous, can be
made liable to every person of the name of A. B. except the person
of and concerning- whom the words were written. It is clear on the
judge's ruling that it would be no defense to say that the writer
intended another j\Ir. A. B. to whom the statement referred, but
who knew of the existence of some other person of that name, would
be able to come and give the same evidence as was held by the
learned judge to be sufficient to support the plaintiff's case in the
present instance.

The same consequence might be true in many cases where the
words were not defamatory of the person of whom they were spoken.
An erroneous application may render innocent words defamatory.
That ]\Ir. A. B. devotes himself in his private life to spreading the
doctrines of the Protestant Church might constitute a serious charge
of hypocrisy if erroneously applied to an eminent Roman Catholic
of the same name ; and even the harmless domestic announcement
that Mrs. A. B. had just had a baby might make a man liable to a
grave charge of having accused a person of want of chastity if
readers are at liberty from the similarity of name to apply it to a
lady who was at the time a widow. It would indeed be a calamity
if our English law of defamation burdened ordinary speech or writ-
ing with such a chaos of responsibilities.

But the most serious aspect of the new doctrine is when we
apply it to cases where the description is not by name. After all
a name is only one means of identification, and, considering the
millions of names that must exist in England and the improbability
of any man's name being borne by him alone, is not a very strong
one. There is no difference in the eye of the law with regard to an
indication of identity by name and indication by other modes of
description. Now suppose no name is mentioned, but that the de-
scription is purely circumstantial. Let us take the case of a preacher
or speaker who in denouncing some practice may introduce into his
discourse some hypothetical case in order to render his meaning
clear. Some detail innocently introduced by him, or even the choice
of that particular theme, may lead his hearers to imagine that he is
referring to some particular person in the neighborhood of whose
existence and circumstances he is wholly ignorant and to whom per-
sonally he is not in any way referring. The learned judge clearly
indicates that in that case he would be liable for defamation, and in
fact says that he has already ruled in another case tried before him.
Nor do I see how a person could guard himself against such a lia-
bility or what defense he could raise. It is clear law that no omis-
sion of the name, or statement that it is a hypothetical case or decla-
ration that he does not intend to refer to anybody in particular, can
or ought to protect a person so speaking whose intention is to libel.
It could not therefore protect an innocent man under this ruling
that intent is immaterial.


Farwf.ll, L. J. The first step is to prove that the words pub-
lished, whether by name, nickname or description, are such as rea-
sonably to lead persons acquainted with the plaintiff to believe that
he is the person to whom the libel refers, the next step is to prove
that that is the true intent and meaning of the words used.

The rule is well settled that the true intention of the writer of
any document, whether it be contract, will, or libel, is that which is
apparent from the natural and ordinary interpretation of the writ-
ten words by persons who know the plaintiff and the circumstances.
Lord Blackburn's speech in Capital and Counties Bank v. Ilenty,
L. R. 7 App. Ca. 787, has already been read. It has been held that
a mistake in the statement is no defence. Thus in Shc[>hcard v.
Whitakcr, L. R. 10 C. P. 502, the defendant's newspaper by mistake
inserted the name of a trading firm under the heading of "First
Meetings under the Bankruptcy Act" instead of "Dissolution of
Partnership." The mistake was simply an error in setting up the
type, but the defendants were held liable ; and the same result might
follow if the mistake had been in the name of the firm, for instance
if they had intended to insert Smith & Co. and had in fact inserted
Shepheard & Co., and this, too, whether the existence of that firm
was or w^as not known to them. Before Lord Denman's Act in
1843 and Lord Brougham's Act in 1851 a defendant was not a com-
petent witness, and the defendant could never have been called to
state his intention. And in my opinion he cannot now be heard to
say that he did not intend the true meaning of his own w^ords as in-
terpreted by relevant surrounding circumstances on the issue of
publication of the plaintiff, although such evidence w-ould be ad-
missible in mitigation of damages as negativing express malice. It
always was and is still open to him to prove the surrounding cir-
cumstances, so as to shew that, although the words appear to refer
to the plaintiff, that is not their true intent and meaning. As Lord
Blackburn says in River Wear Commissioners \. Adamson:

'Tn all cases the object is to see what is the intention expressed
by the words used. But, from the imperfection of language, it is
impossible to know what the intention is without inquiring farther,
and seeing what the circumstances were w'ith reference to which
the words were used, and what was the object, appearing from those
circumstances, which the person using them had in view ; for the
meaning of w^ords varies according to the circumstances with respect
to which they were used." In the present case the jury have found
that the libellous article described an actual scene at Dieppe, and that
"Artemus Jones" mentioned therein described an actual person and
not a mere type. If the defendants had proved in the present case
not only that the w'riter of the article did not know of the plaintiff's
existence, but also that there was an Artemus Jones otlicr than the
plaintiff, who was at present in Dieppe in the company alleged, then
the circumstances w'ith reference to which the words "Artemus
Jones" were used would shew that the plaintiff* was not the person
intended ; but the writer of the libel has chosen to state as a fact
that Artemus Jones was present in order (as he says) to avoid the


banality of using A. B. or a blank: he has, therefore, for his own
purpose chosen to assert a fact of a person bearing the very unusual
name of Artemus Jones, recklessly, and caring not whether there
was such a person or not, or what the consequence might be to him.
An action for defamation differs from other actions, such for
instance f.s trespass, in that it is of the essence of defamation that
the plaintiff should be aimed at or intended by the defendant. The
man who throws a squib into a crowd not intending to hit any one
is liable for the consequence of his act, whatever his intentions
may have been, because the two necessary constituents of tort,
namely, a wrongful act by the defendant and actual damage to the
plaintiff, are both present. But it is not enough for a plaintiff in
libel to shew that the defendant has made a libellous statement and
that the plaintift''s friends and acquaintances understand it to be
written of him : he must also shew that the defendant printed and
published it of him; for if the defendant can prove that it was
written truly of another person the plaintiff would fail. To this
extent I agree with Fletcher Moulton L. J., but we differ as to
the meaning of the word "intended". In my opinion the defendant
intended the natural meaning of his own words in describing the
plaintiff as much as in the innuendo: the inquiry is not what did
the defendant mean in his own breast, but what did the words mean
having regard to the relevant surrounding circumstances. For ex-
ample, fraud is proved in an action of deceit not only when a false
representation is made knowingly, but also when it is made reck-
lessl3% careless whether it be true or false, and although there v^^as
no intention to cheat or injure the person to whom the statement
was made — Derry v. Peek, 14 App. Ca. 337, and yet fraudulent in-
tent is of the essence of the action. So the intention to libel the
plaintiff may be proved not only when the defendant knows and
intends to injure the individuals, but also when he has made a state-
ment concerning a man by description by which the plaintiff is
recognized by his associates, if the description is made recklessly,
careless whether it hold up the plaintiff" to contempt or ridicule or
not. In such a case it is no answer for the defendant to say that he
did not intend the plaintiff, because he had never heard of him : he
intended to descril^e some living person : he can suggest no one else ;
and the plaintiff" proves that he is believed by his acquaintances and
friends to be the person aimed at, and has suffered damage thereby.
The element of intention, which is as essential to an action of
defamation as to an action of deceit, can be proved in the same way
in both actions. The issue of fact is whether the plaintiff is intended
by the lil>eller ; but sufficient evidence to prove it may be given, al-
though the defendant had no intention of injuring the plaintiff and
had never heard of his existence. The squib thrower is liable for
the injury done by his squib to the plaintiff, whether he aimed at
or intended to hit him or not ; the libeller is not liable to the plain-
tiff unless it is proved that the libel was aimed at or intended to
hit him ; the manner of proof being such as I have already stated.
If the libel was true of another person and honestly aimed at and


intended for him, and not for the plaintiff, the latter has no cause
of action, although all his friends and acquaintances may fit the
cap on him. If this were not so, no newspaper could ever venture
to publish a true statement of A., lest some other person answering
the description should suffer thereby.

I am therefore of the opinion that the defendant cannot com-
plain of Channel J.'s summing up. I do not think that he intended to
rule anything more than that the alleged actual, as distinguished from
the expressed, intention of the defendant w^as under the circum-
stances of this particular case immaterial. I do not understand him to
have withdrawn from the jury the question whether the plaintiff was
the person of whom the libel was published, which was, in my opin-
ion, a question for them to decide, but to have ruled that the fact
that any one of the plaintiff's names was unknown to the writer and
to every one in the defendants' office through whose hands the libel
passed was not a conclusive defence requiring him to stop the case;
and in this way he was, in my opinion, right. The ignorance was
of course a material fact, both in considering the question of the
true intent of the defendants and also in considering the damages,
but I think that these were before the jury. It was said that there
was some misdirection on the point of negligence, but I do not
think that this is so. Negligence is immaterial on the question of
libel or no libel, but may be material on the question of damages.
The recklessness to which I have referred, founding myself on
Derry v. Peck, is quite different from mere negligence.

Appeal dismissed.

From this action of the Court of Appeals the defendant took
an appeal to the House of Lords.

Lord Loreburn L. C. My Lords, I think this appeal must be
dismissed. A question in regard to the law of libel has been raised
which does not seem to me to be entitled to the support of your
Lordships. Libel is a tortious act. What does the tort consist in?
It consists in using language w^iich others knowing the circum-
stances would reasonably think to be defamatory of the person
complaining of and injured by it. A person charged with libel can-
not defend himself by shewing that he intended in his own breast
not to defame the plaintiff, if in fact he did both. He has none the
less imputed something disgraceful and has none the less injured
the plaintiff. A man in good faith may publish a libel believing it
to be true, and reasonably believing it to be true, but that in fact
the statement was false. Lender those circumstances he has no
defence to the action, however excellent his intention. If the inten-
tion of the writer be immaterial in considering whether the matter
written is defamatory I do not see why it need be relevant in con-
sidering whether it is defamatory of the plaintiff. The writing, ac-

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 121 of 124)