reptile. He is not fit to go with decent girls," is clearly aimed at its victim in his vocation; and is actionable per se.1

148

The early English cases 149 show a disposition on the part of judges to limit the terms "profession" and profession" and "trade" rather narrowly, but the modern "rule,150 as to words spoken of a man in his office or trade, is not necessarily confined to offices and trades of the nature and duties of which the law can take notice. The only limitation is, that it does not apply to illegal callings." 151

In cases of the sort now under consideration, the complaint should expressly allege that the defamatory statement was uttered of the plaintiff in the way of his then profession, trade, business or calling, unless this clearly appears from the statement itself.15:

Whether a particular statement is such as to necessarily harm its victim in his vocation is a question of fact.

It is not strange, therefore, that the verdict of jurors and the rulings of judges, with respect to very similar statements, are quite diverse. There can be no doubt, however, that to falsely charge a trader with insolvency, 15 or a professional man with moral unfit

148

Bray v. Callihan, 155 Mo. 43, 55 S. W. 865 (1900); Birchley's Case, 4 Coke, 16 a. (1595), charging an attorney with being corrupt in his profession; Squire v. Johns, Cro. Jac. 585 (1620), charging a dyer with being a bankrupt knave. Southam V. Allen, T. Ray. 231 (1673); Trimmer v. Hiscock, 27 Hun, (N. Y.) 364 (1882), charging innkeeper with being bankrupt or having no decent accomodations; Buck v. Hersey, 31 Me. 558 (1850), charging a teacher of dancing with drunkenness, vagrancy, etc.; Fitzgerald v. Redfield, 51 Barb. (N. Y.) 484 (1868).

that a renter of lands was not a trader, so as to be touched in his trade by the charge that he had cheated in corn. In Barker V. Ringrose, Popham 184 (1626), a wool-winder was held not to be scandalized by the charge that he was a bankrupt knave.

150 Foulger v. Newcomb, L. R. 2 Ex. 327, 36 L. R. Ex. 169 (1867); De Pew v. Robinson, 95 Ind. 109 (1883); Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457 (1890); Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74 (1890).

151 Hunt v. Bell, 1 Bing. 1 (1822), keeping open rooms for pugilistic encounters; Weltmer v. Bishop, 171 Mo. 110, 71 S. W. 167 (1902).

152 Ayre v. Craven, 2 Ad. & E. 2 (1834); Jones v. Little, 7 M. & W. 423, 10 L. J. Ex. 171 (1841).

153 Whittington v. Gladwen, 5 B. & C. 180, 2 C. & P. 146 (1826); Newell

156

ness 154 or mental incompetence 155 or want of ordinary skill in his calling,' or any person with dishonesty in the business whereby he gains his bread,157 is to utter actionable slander.

Words not Actionable per se, but Causing Special Damage. When defamatory language of this kind is the subject of complaint, the plaintiff must set forth the special loss or injury which he claims to have suffered, and must show that such injury is the natural and proximate consequence of the defamation.158 It is not enough to allege generally that the plaintiff "has been damaged and injured, in her name and fame," 159 nor that he has "suffered pain of mind, lost the society or good opinion of his neighbors, or the like, unless he has also been injured in his estate or property.` It is enough, however, to allege and prove that the slander has prevented the plaintiff from obtaining civil entertainment at a public house,161 or has led to her being turned away from a private house,

v. Howe, 31 Minn. 235, 17 N. W. 383 (1883); Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 20 L. R. A. 138, 38 Am. St. R. 592 (1893).

154 Pemberton v. Colls, 10 Q. B. 461, 16 L. J. Q. B. 403 (1847); Irwin v. Brandwood, 2 H. & C. 960, 33 L. J. Ex. 257 (1864); Piper v. Woolman, 43 Neb. 280, 61 N. W. 588 (1895); Hayner v. Cowden, 27 Oh. S. 292 (1875).

155 Peard v. Jones, Cro. Car. 382 (1635); Watson v. Vanderlash, Hetl. 69, 71 (1628); Botterill v. Whytehead, 41 L. T. 588, 21 A. L. J. 103 (1879); Dennis V. Johnson, 42 Minn. 301, 44 N. W. 68 (1890); St. James Military Acad. v. Gaiser, 125 Mo. 517, 28 S. W. 851, 46 Am. S. R. 502 (1899); Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526, 76 Am. S. R. 317 (1900).

156 Day V. Butler, 3 Wils. 59

(1770); Edsall v. Russell, 4 M. & Gr. 1090, 5 Scott, N. R. 801, 2 Dowl. N. S. 641, 12 L. J. C. P. 4 (1843); Johnson v. Robertson, 8 Port. (Al.) 486 (1839); Sumner v. Utley, 7

Conn. 257 (1828); Secor v. Harris, 18 Barb. (N. Y.) 425 (1854); Mattice v. Wilcox, 147 N. Y. 624, 42 N. E. 270 (1895); Ganorean v. Superior Pub. Co., 62 Wis. 403, 22 N. W. 726 (1885).

157 Thomas v. Jackson, 3 Bing. 104, 10 Moore, 125 (1825); Garr v. Selden, 6 Barb. (N. Y.) 416 (1848); Fowler v. Bowen, 30 N. Y. 20 (1864).

158 Haddan v. Lott, 15 C. B. 411, 29 L. J. C. P. 49 (1860). See Remoteness of Damage, supra, p. 90.

150 Pollard v. Lyon, 91 N. S. 225 (1875); Cook v. Cook, 100 Mass. 194 (1868).

150 Beach v. Ranney, 2 Hill (N. Y.) 309 (1842); Terwilliger V. Wands, 17 N. Y. 54 (1858); Bassell v. Elmore, 65 Barb. (N. Y.) 627 (1866), 48 N. Y. 561 (1872).

161 Olmstead v. Miller, 1 Wend. (N. Y.) 506 (1828). In Roberts v. Roberts, 5 B. & S. 384, 33 L. J. Q. B. 249 (1864), it was held that the loss, suffered by the plaintiff in being excluded from a religious society, was

164

where she was receiving gratuitous entertainment,162 or has caused the retraction of a pecuniarily valuable, though gratuitous promise, 193 or has caused a woman the loss of a marriage,' or has prevented a person from getting or keeping employment,165 or has caused an injury to the plaintiff's business or avocation.166 Such loss, however, must be shown to have been the natural and probable consequence of the defamatory statement.167

These may be either

General Damages in Defamation. nominal, compensatory or exemplary.168 The amount of damages in each case is peculiarly a question for the jury; 169 but the courts. do not hesitate to set aside or modify verdicts, which are either so excessive, or so meager, as to indicate improper motives in the jury.170

It is to be borne in mind, that while malice in fact, as distinguished from malice in law, must be shown in order to sustain a verdict for exemplary damages, it is not necessary to establish the existence

not temporal damage. Dwyer v.
Meehan, 18 L. R. Ir. 138 (1886);
Shafer v. Ahalt, 48 Md. 171, 30 Am.
R. 456 (1877), accord.

162 Davies v. Solomon, L. R. 7 Q. B. 112, 41 L. J. Q. B. 10 (1871); Williams v. Hill, 19 Wend. (N. Y.) 305 (1838).

163 Corcoran v. Corcoran, 7 Ir. C. L. R. 272 (1857), promise to supply plaintiff with means for a trip to Australia.

184 Davis v. Gardner, 4 Coke, 16 b. (1593); Sheppard v. Wakeman, 1 Lev. 53 (1662).

165 Sterry v. Foreman, 2 C. & P. 592 (1827).

166 Brown v. Smith, 13 C. B. 596, 22 L. J. C. P. 151 (1853).

167 Miller v. David, L. R. 9 C. P. 118, 43 L. J. C. P. 84 (1874). There is "no authority for the proposition that a statement, false and malicious, made by one person in regard to another whereby that other might probably, under some circum

169 Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409 (1896); Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 (1903).

170 Peterson v. W. U. Tel. Co., 65 Minn. 18, 67 N. W. 646 (1896).

171 Peterson v. W. U. Tel. Co., 72 Minn. 41, 74 N. W. 1022 (1898). See Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 (1903), malice in law is defined as a wrongful act, done intentionally without legal justification or excuse, while malice in fact is defined as an act done with intent to harm the plaintiff or with a wilful and wanton neglect of his rights.

of actual malevolence on the defendant's part towards the plaintiff.12 It is enough to show that the defendant's conduct in publishing the defamation,173 or in pleading its truth as a defense,174 was reckless or wanton. Evidence of such misconduct is always competent for the plaintiff in aggravation of his damages; as is evidence of the extent, to which the defendant has published the defamation; of the number of his repetitions of it, or of his refusal to retract, or of the nature of his apology.175

On the other hand, the defendant may absolve himself from exemplary damages or mitigate them, by showing that he acted in good faith, in repeating the defamatory statement as a matter of hearsay, and giving the source of his information,176 or by showing that the plaintiff provoked the statement,177 or by showing the plaintiff's bad reputation. 178 By statute in some jurisdictions, various matters may be shown in mitigation of damages, which were not available at common law.179 Absence of actual malice does not exempt the defamer from liability to compensatory damages except in the cases of qualified privilege, to be considered presently; nor does the fact that the defamation had been published by others, nor that the plaintiff had recovered against such others.181 Com

172 Smith v. Matthews, 152 N. Y. 152, 46 N. E. 164 (1897).

173 Warner v. Pres. Pub. Co., 132 N. Y. 181, 30 N. E. 393 (1892); Morning Journal Assoc. v. Rutherford, 51 Fed. 513, 2 C. C. A. 354, 1 U. S. App. 296 (1892).

174 Mark v. Pres. Pub. Co., 134 N. Y. 561, 31 N. E. 398 (1892).

175 Chamberlin v. Vance, 51 Cal. 75 (1875); Thibault v. Sessions, 101 Mich. 279, 59 N. W. 863 (1894); Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710 (1885); Enos v. Enos, 135 N. Y. 607, 32 N. E. 123 (1892); Van Derveer v. Sutphin, 5 O. St. 293 (1855); Patten v. Belo, 79 Tex. 41, 14 S. W. 1037 (1890).

176 Duncombe v. Daniel, 8 C. & P. 222, 2 Jur. 32 (1837); Dole v. Lyon, 10 Johns. (N. Y.) 447 (1813); Republican Pub. Co. v. Mosman, 15 Col.

180

397, 24 Pac. 1051 (1900); Lothrop v. Adams, 133 Mass. 471 (1882); Upton v. Howe, 24 Or. 420, 33 Pac. 810 (1893).

177 Tarpley v. Blabey, 2 Bing. N. C. 247, 2 Scott, 642, 7 C. & P. 367 (1836); Stewart v. Tribune Co., 41 Minn. 71, 42 N. W. 787 (1889).

178 Scott v. Sampson, 8 Q. B. D. 491, 51 L. J. Q. B. 380 (1882); Halley v. Gregg, 82 Ia. 622, 48 N. W. 974 (1891).

179 Lord Campbell's Act, 6 & 7 Vict. c. 96; New York Code of Civil Procedure, §§ 535, 536.

180 Odgers, Libel & Slander, (3rd. Ed.) p. 362.

191 Creevy v. Carr, 7 C. & P. 64 (1835); Enquirer Co. v. Johnston, 72 Fed. 443, 18 C. C. A. 623 (1896); Wilson v. Fitch, 41 Cal. 363 (1873); Sheahan v. Collin, 20 Ill., 325

pensatory damages include loss of reputation, shame and injury to the feelings. 182

§ 4. DEFENSES IN ACTIONS FOR DEFAMATION.

Classified. These may be classed under three heads: Truth, Privilege, and Fair Comment.

66

" 183

The Truth of the Charge is a complete defense at common law to a civil action for slander or libel, because "the law will not permit a man to recover damages in respect to an injury to a character which he either does not or ought not to possess." It must be specially pleaded, however, in order that evidence of it may be given; for this defense is not a direct denial of the cause of action, but a collateral matter, which, if established by the defendant, will bar a recovery that otherwise must follow the malicious injury." Moreover, the justification must be as broad as the defamatory charge, and the defendant has the burden of showing that every material part of the charge is true.185 Again, a plea of the truth should state the charge with the precision of an indictment,186 and will be construed strictly against the defendant.187 In some States, the truth of a libel is not a defense, unless the publication was made

(1858); Palmer v. Matthews, 162 N. Y. 100, 56 N. E. 501 (1900); Conroy v. Pittsburg Times Co., 139 Pa. 334, 21 At. 154 (1891).

182 Hearne v. De Young, 132 Cal. 357, 64 Pac. 576 (1901); Bedkney v. Bedkney, 15 S. D. 310, 89 N. W. 479 (1902); Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249 (1901).

183 McPherson v. Daniels, 10 B. & C. 270, 5 M. & R. 251, 34 R. R. 397 (1829); Baum v. Clause, 5 Hill (N. Y.) 199 (1843); McCloskey v. Pulitzer Pub. Co., 152 Mo. 339, 53 S. W. 1087 (1899); Castle v. Houston, 19 Ks. 417 (1877).

184 Atwater v. Morning News Co., 67 Conn. 504, 34 At. 865 (1896); Pokrok Pub. Co. v. Liskovsky, 42 Neb. 64, 60 N. W. 358 (1894); McCloskey v. Pulitzer Pub. Co., 152 Mo. 339, 53 S. W. 1087 (1899).

185 Miller v. McDonald, 139 Ind.

" 184

465, 39 N. E. 159 (1894); Murphy v. Olberding, 107 Ia. 547, 78 N. W. 205 (1899); Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381 (1902); proof of plaintiff's unchastity is insufficient to establish truth of charge that she was a "dirty, old whore "; Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856 (1887); Andrews v. Van Duzer, 11 Johns. (N. Y.) 38 (1814); Dement v. Houston Printing Co., 14 Tex. Civil App. 391, 37 S. W. 785 (1896); Dillard v. Collins, 25 Gratt (Va.) 343 (1874).

180 Higkinbotham v. Leach, 10 M. & W. 363, 2 Dowl. N. S. 270 (1892); Dennis v. Johnson, 47 Minn. 56, 49 N. W. 383 (1891); Woodbeck v. Keller, 6 Cow. (N. Y.) 118 (1826).

197 Sunman v. Brewin, 52 Ind. 140 (1875); Buckner v. Spaulding, 127 Ind. 229, 26 N. E. 792 (1890);