Francis H. (Francis Hermann) Bohlen.

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erable quantity of coprolites, and is altogether an article of low

from obtaining a contract and resulting in his having to accept it on unfavor-
able terms was held actionable, it did not however appear that the defendant
was at the time attempting to obtain the contract nor did the letter contain
any comparison of the defendant's blocks with those of the plaintiff's. In
Weiss V. Whitteniore, supra, note 1, it was held that it was actionable for
the defendants, agents for the Knabe Piano, to say that the plaintiff, the agent
of the Steinway Piano, had himself recommended the Knabe Piano as the

^Accord: Martin, J., in Evans v. Harries, 26 L. J. Ex. 31 (1856), "Sup-
pose a biscuit baker in Regent Street is slandered by a man saying his bis-
cuits are poisoned; and in consequence no one enters his shop. He cannot
complain of the loss of any particular customer for he does not know them,
and how hard and unjust it would be if he could not prove the fact of the
loss under a general allegation of loss of custom", Weiss v. Whitteniore, 28
Mich. 366 (1873), note 1, Morasse v. Brochu, 151 Mass. 567 (1889) ; contra,
Patterson J. in Evans v. Harlow, supra, note 2; Marcy J. in Tobias v. Har-
land, 4 Wend. 537 (N. Y. 1830), p. 540, and as to such allegations and proofs
in actions of slander for words not actionable per se, see note to Terwil-
liger v. Wands, ante.


quality, and ou^ht to be the cheapest of the four. _ The other two
are fair articles and may be usefully employed. It is not for me to
put an exact value upon the samples, as the prices charged for
manures in the different parts of the country differ to an extraordi-
nary extent. I know places where No. 2 (meaning the defendants'
said artificial manures) would be sold at about £8 per ton, others,
where £7 would be its price. I may state, however, the relative
values thus: Suppose the price charged for No. 2 (meaning the
defendants' said artificial manures) to be i8 per ton ; then No. I
shcmld be worth £7; No. 3, £5 los ; and No. 4 (meaning the plain-
tiffs' said artificial manures), £5. Of course these must be taken as
approximation only, and may be modified by the nature of the bar-
gain ; but they should be in these proportions."

(Then following an analysis in detail, purporting to shew the
proportion of phosphates and ammonia in the plaintiffs' and defend-
ants' artificial manures respectively.)

Meaning thereby, that the said artificial manures so manufac-
tured, sold, and traded in by the plaintiffs were artificial manures
of an inferior quality to the said artificial manures, and especially
were of an inferior quality to the said artificial manures of the de-
fendants. Whereas, in truth and in fact, the said artificial manures
so manufactured, sold, and traded in by the plaintiffs were not of
an inferior quality, and especially were not inferior in quality to
the said artificial manures of the defendants. And by reason of the
premises (here followed an allegation of special damage.)

Demurrer and joinder.

Br.\mwell, B. In this case our judgment must be for the
plaintiffs. The case may be shortly stated thus. The plaintiffs
trade in a certain article of manure, and it is alleged that the de-
fendants falsely and maliciously published of and concerning that
manure, and of and concerning the plaintiffs' trade and maiiufac-
ture, a certain statement which contains in it this, — that it was
an article of low quality and ought to be the cheapest of four, of
wdiich this is one, the others being mentioned. So far an action
would not be maintainable, because it is not libelling an article to
say that it is an article of low quality and ought to be cheaper than
others. That part is not specifically stated to be untrue, but having
been published as it is said of and concerning the plaintiffs' manu-
factures and trade, the declaration goes on and says "meaning
thereby that the artificial manures so manufactured and traded in
by the plaintiffs were artificial manures of inferior quality to other
artificial manures, and that they especially were of inferior quality
to the artificial manures of the defendants." I think if it stopped
there it would not be the subject-matter of an action, even with spe-
cial damage resulting from it, because I do not see that it is in-
jurious to an article to say that it is of inferior quality. It may at-
tract certain customers, and it is a very good thing that people can
be found who will sell things of an inferior quality in order that
they may not be wasted. But wdiat makes the action maintainable
is the allegation that follows: "Whereas, in truth and in fact, the


said artificial manures so manufactured and traded in by the plain-
tiffs were not of inferior quality, and were not inferior in quality
to the said articles of manure of the defendants ;" and by reason
of the premises, certain persons, who, if they had not been told that
which was untrue, would have continued to deal with the plaintiffs,
are alleged to have ceased to deal with them. So that there appears
there was a statement published by the defendants of the plaintiffs'
manufacture, which is comparatively disparaging of that manufac-
ture, which is untrue so far as it disparages it, and which has been
productive of special damage to the plaintiffs ; and it is stated that
the publication was made falsely and "maliciously," which possibly
may mean nothing more than that it was made falsely and without
reasonable cause, calling for a statement by the defendants on the
subject. But if actual malice is necessary — which I do not think
is the case — the allegation is sufficient. It seems to me, however, that
where a plaintiff says, "You have without lawful cause made a false
statement about my goods to their comparative disparagement, which
false statement has caused me to lose customers," an action is m.ain-

I do not go through the cases, but undoubtedly there is nothing
in any of them inconsistent with the judgment we now pronounce.
The only case that I will refer to is Young v. Macrae, 3 B. & S. 264.
When examined that case will be found to differ materially from
this one. The disparaging statement there was not expressly said
to be untrue ; it was only said generally that the libel was untrue,
which it might be if only so much of it was untrue as contained
praise of the defendants' own goods. On the gerieral principle, there-
fore, that an untrue statement disparaging a man's goods, published
without lawful occasion, and causing him special damage, is action-
able, we give our judgment for the plaintiffs.

Pollock, B. I agree that our judgment in this case should be
in favor of the plaintiffs. This case, no doubt, involves first princi-
ples. On the one hand, the law is strongly against the invention or
creation of any rights of action, but, on the other hand, where a
wrong has actually been suffered by one person in consequence of the
conduct of another, one is anxious to uphold as far as possible the
maxim "ubi jus ibi remedium." It seems to me the present case
comes within the rule. Now, in the first place, this is not an action
of libel. I think it is entirely distinguishable from that class of cases.
It is alleged in the declaration that the matter complained of here was
written. I think that makes no distinction. I will not say more upon
that than that the difference between a written or verbal statement of
the kind now complained of and an ordinary defamatory statement
is very clearly pointed out by Tindal, C. J., in his judgment in Ma-
lacl.y V. Soper, 3 Bing. N. C. at p. 386. This action is, I think, in the
nature of an action of slander of title, and comes within the general
rule laid down as to such actions in Comyn's Digest, where it is said
that an action lies when special damage is shewn. (Com. Dig. tit.
^.ction on case for Defamation, G 11.)

The only question, therefore, that seems to arise is, what is the


fair intention of the words? It is alleged that the defendants were
contriving and intending to injure the plaintiffs in their business, and
that they falsely and maliciously printed and published the words in
question. Now I do not attach any special nicaniiig to the word
"maliciously," except so far as it must be taken with the words
"contriving and intending to injure the plaintiffs." I think that de-
prives the defendants of what I may call any legal occasion or op-
portunity on which they might use words of this kind. Therefore
we have it stated that without legal occasion, without any necessity,
the defendants have used language of and concerning the plaintiffs'
goods which not only are false, but are such as to injure the plain-
tiffs in their business, and special damage is alleged. When all these
things concur it seems to me a good cause of action is disclosed.
With reference to the cases that have been cited, Malachy v. Soper,
3 Bing. N. C. 371 ; Evans v. Harlow, 5 Q. B. 624; and Young v.
Macrae, 3 B. & S. 264, I would only observe that, in the two first
mentioned cases, there is no allegation of special damage, whilst the
last is distinguishable on the grounds mentioned by my Brother
Bramwell. Moreover, there the Chief Justice in his judgment, 3 B.
& S. at p. 271, supposes a case very like the present one, and states
that, in his opinion, an action would lie in such circumstances.

Judgment for ihe plaintiffs.^

'In Bruce v. Smith, Ltd., 1 Sessions Cases, 5th Series, 327 (1898), an
action against the publisher of a newspaper for an article, stating that build-
ings built and owned by the plaintiff were not unlikely to collapse, the courts
sustained Lord Kilcairncy who refused to amend the issue which required
the plaintiff to prove that the defendants had falsely and calumniously pub-
lished statements in regard to the pursuer's buildings to his loss, so as to re-
quire the pursuer to prove in addition that it was published maliciously and
without probable cause, Lord Kilcairncy saying, "That the question as to the
insertion of malice has always been held to depend solely upon the position
of the defenders and here it has been said that the defenders have no privi-
lege." See also, Nagy v. Manitoba Free Press Co., 16 Manitoba 616 (1907),
particularly the opinion of Phippen J. A., affirmed 39 Supreme Court of
Canada, 340 (1907), in which Davies J. A. said, "The reckless publication
by a defendant of an untruth concerning the complainant's property the
natural result is to produce and where it does produce actual damage, is
sufficient evidence of the absence of bona fide and of the malice required by
law." "Actual malice in the sense of a predetermined intention to injure
the plaintiff or his property cannot be necessary to be proved." The defend-
ant in this case had published a sensational article alleging that the plainti.T's
house was haunted. In a similar case, Barrett v. Associated Newspapers, 23
Times L. R. 666 (1907), in which the plaintiff failed because no damage v;as
shown to have been caused by the publication, Cozzens-Hardy M. R. inti-
mated his impression that malice must be proved. See, however, Fell C. J.
in Young v. Geiske, 209 Pa. 515 (1904), "An action for words spoken con-
cerning a thing is in some respects like an action of malicious prosecution
. . . as in malicious prosecution the action cannot be sustained without
showing malice as a probable cause."

In the early cases little mention is made of malice where the defendant
claimed no title in himself or in some one for whom he was acting. Penv> -
man v. Rabank. Cro. Eliz. 427 (1594); Mcjrvin v. Maxnard, Cro. Eliz. ^10
(1596). In Milmay's Case, 1 Coke *175 (1581), the defendant, who wa? mil-
led by his ignorance of law. honestly believed his statement to be true htit -t
was held that "forasmuch as he has taken on himself the knowledge of the


Harm Intentionally Caused by the Publication of Statements
Not In Themselves Defamatory.


Court of Appeal, 1892. L. R. (1892) 2 Q. B. 524.

Motion to enter judgment for the defendant, or for a new trial,
by way of appeal from the judgment entered by Mr. Commissioner
Bompas, Q. C, in an action tried with a jury at the Chester Summer

Assizes^ I 8ql

The statement of claim in the action alleged that the plaintiff
had for many years carried on business, at Hawarden in the county
of Flint, of an engineer and boiler-maker under the name of "Rat-
cliffe & Sons," having become entitled to the good will of the busi-
ness upon the death of his father, who, with others, had formerly
carried on the business as "Ratcliffe & Sons" ; that the defendant
was the registered proprietor, publisher, and printer of a weekly
newspaper called the County Herald, circulated in Flintshire and
some of the adjoining counties, and that the plaintiff had suffered
damage by the defendant falsely and maliciously publishing and
printing of the plaintiff in relation to his business, in the County
Herald, certain words set forth which imported that the plaintiff had
ceased to carry on his business of engineer and boiler-maker, and
that the firm of Ratcliffe & Sons did not then exist^

At the trial the learned commissioner allowed the statement
of claim to be amended by adding that "by reason of the premises
the plaintiff was injured in his credit and reputation, and in his said
business of an engineer and boiler-maker, and he thereby lost profits
which he otherwise would have made in his said business." The

law, and meddling with a matter which did not concern him", judgment
against him was affirmed, and in Ross v. Pines, Wythe 69 (Va. 1789), it was
said, p. 71, that the defendant "although he is believed not to have designed
any injury, ought to make reparation" for the loss of a sale occasioned by
statements in a letter written by him.

See Fletcher J., Swan v. Tappan, 5 Cush. 104 (Mass. 1849), p_. Ill: "If
the plaintiff can show that the publication was false in any material respect,
and can also show special damage, done to himself by means of it, that will
make a prima facie case for the plaintiff, and as standing thus malice would
be presumed. But if the defendant can show that the publication was hon-
estly made by him believing it to be true, and that there was a reasonable
occasion or exigency in the conduct of his own affairs, in matters where his
interest was concerned, which fairly warranted the .publication, such proof
would rebut the presumption of malice, and bring the publication within the
class of privileged publication, and form a good defence to the action, unless
the plaintiff can show express malice, or malice in fact, which will of course
be a question for the jury.



plaintiff proved the publication of the statements complained of, and
that they were untru<;^ He also proved a general loss of business
since the publication ; but he gave no specific evidence of the loss of
any particular customers or orders by reason of such publication.
In answer to questions left to them by the commissioner, the jury
found that the words did not reflect upon the plaintiff's character,
and were not libelous ; that the statement that the firm of Ratcliffe
& Sons was extinct was not published bona fide ; and that the plain-
tiff's business suffered injury to the extent of 120 /. from the publiji _
cation of that statement. The commissioner, upon those findings,
gave judgment for the plaintiff for 120 /., with costs>^

The defendant appealed.

BowEN, L. J. This was a case in which an action for a false
and malicious publication about the trade and manufactures of the
plaintiff was tried at the Chester assizes, with a result of a verdict
for the plaintiff for ii20. Judgment having been entered for the
plaintiff for the sum and costs, the defendant appealed to this Court
for a new trial, or to enter a verdict for the defendant, on the
ground, amongst others, that no special damage, such as was neces-
sary to support the action, was proved at the trial. The injurious
statement complained of was a plibltuatruifTfrthe "County Herald, a
Welsh newspaper. It was treated jn_th£]2Teading~a?~S' defamatory
statement of libel ;^ but this suggestion was ne^[atiyed, and the ver-
dict of the jury pFoceeded upon the view that the writmg was a false
statement purposely made about the fnanufa:ctufes''oPthe plaintiff,
which was intended to, and did in fact, cjiisejiim damage. The only
proof at the trial of such damage consisted, hmvever, of evidence
of general loss of business without specific proof of the loss of any
particular customers or orders, and the question we have to deter-
mine is, whether in such an action such general evidence of damage
was admissible and sufficient.- That an action will lie for written
or oraTTalsiTioo3s7nioractioMble^_gerse nor even defamatory, where
they are maliciously published, where^!T5y:;;;aT'g'"caIculated in the or-
dinary course iifthings to^roHuce,^ and where they do produce,
actual damage, is^s5aWi|5|3J^^;S^TCh an action is not ong_ofJihd.
and^sland^eHbut^n actioiTorrfKe^case'fbr damage wilfully and in-
tentionally done without just occasion or excuse, analogous to an
action for slander of title. To support it, actual damage must be

'In Rcid V. Providence Journal, 20 R. I. 120 (180/). it was held that an
action of libel would not lie for words not in their nature defamatory, though
they in fact caused actual harm to the plaintifif.

"A large part of the opinion deciding that such evidence was admissible
and sufficient is omitted, see George v. Blow, post.

''Accord: Riding v. Smith, L. R. 1 Ex. Div. 91 (1876), defendant orally
publicly accused the plaintiff's wife, who was his assistant in his draper's
shop, of adultery; so if the statement had been that one of his shopmen was
suffering from a contagious disease, ibid, per Kelly. C. B., p. 94; "It is the
natural consequence of such a statement that persons would cease to resort
to his shop." Tillinghast, J., in Reid v. Providence Journal, supra, note 1,
"words which are not in their nature defamatory . . . perhaps if false
and malicious and if used by a person, who knows, or ought to know, that


shown, for it is an occasion which only lies in respect of such dam-
age as has«actually occurr^..'

Appeal dismissed.*

special damage will follow, and such damage does in fact follow, an action
on the case may be maintained whatever the nature of the words."

*Accord: American Ins. Co. v. France, 111 111. App. 382 (1903), de-
fendant stated that plaintiff had gone out of the farm insurance business;
Benton y. Pratt, 2 Wend. 385 (N. Y. 1829), defendant, stated that plaintiff
did not intend to perform his agreement to deliver hogs, thereby inducing
the purchaser to buy the defendant's hogs and to refuse the plaintiff's when
they arrived later; Morasse v. Brochu, 151 Mass. 567 (1889), defendant, a
priest, urged his parishioners not to employ the plaintiff as a physician, re-
fusing to attend them if the plaintiff was present, the plaintiff by an un-
canonical marriage having become excommunicated; see Hollenbeck v. Ris-
tine, 105 Iowa 488 (1898). See also, the case put by Littledale J. in Kelley
V. Partington's B. & A. 645 (1833), p. 648; "Suppose a man having a rela-
tive of a penurious disposition and a third person knowing him would injure
him in'the opinion of that relative, tells the latter of a generous action which
the first has done, by which he induces the relative to leave him money,
would that be actionable" ; to which Lord Campbell, then Solicitor General,
answered, "If the words were spoken falsely with intent to injure, they would
be actionable"; and see Odger's Slander & Libel, 2nd ed., p. 91, and the
supposed case given by him of a false report that a tradesman :s "a radical
or a dissenter" disseminated in a small country when political or religious
feeling ran high.

In Haney Mfg. Co. v. Perkins, 78 Mich. 1 (1889), the defendants falsely
stated that they had served an injunction against the plaintiffs, trade rivals,
and had about closed up their factory. There was some proof of actual
damage but Long J. said, "that the action was not strictly one for slander of
title and that words spoken or written injurious to a person in his business,
and false and malicious, are actionable per se, and special damage need not
be proved."

In Dudley V. Briggs, 141 Mass. 582 (1886), the plaintiff's declaration set
out that he had for many years published a biennial local directory and had
secured a valuable list of advertisers and subscribers, and that he intended to
publish such a directory in 1885, and that the defendant in order to injure
him and prevent him from publishing such directory in order that he might
secure the same for himself, falsely and fraudulently represented to such ad-
vertisers and subscribers that the plaintiff had gone out of the business and
had sold it to the defendant, thereby inducing the plaintiff's subscribers and
advertisers to give their subscriptions and advertisements to the defendant
and preventing the plaintiff from gaining profit by the publication of such
directory. On demurrer the declaration was held to disclose no cause of ac-
tion on the ground that "it is entirely problematical whether the plaintiff
would have actually published a directory if the defendant had not made the
fraudulent statements alleged"; see Hutchins v. Hutchins, 7 Hill 104 (N. Y.
1845), the defendant, knowing that the plaintiff's father had by will devised
to him a farm, falsely represented to the father that the plaintiff intended to
set up a large claim against his estate after his death, and so prevailed upon
the father to revoke the will and execute another by which the plaintiff was
given nothing, Nelson C. J. regarding "the deprivation of any substantial
advantage, such as the loss of customers, of a permanent home at a friend's
or advancement in life" as "peculiar" to actions of slander for words in their
nature defamatory but not actionable per se.




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