In Terwilliger v. Wands (1858) 17 N.Y. 54, cited by the majority, the farmer who was slandered became distressed, melancholy, sick and pale. He was unable to work his fields and suffered a loss of income.Summary of this case from O'Hara v. Storer Communications, Inc.
March Term, 1858
B.D. Noxon, for the appellant.
Leroy Morgan for the respondent.
The words spoken by the defendant not being actionable of themselves, it was necessary in order to maintain the action to prove that they occasioned special damages to the plaintiff. The special damages must have been the natural, immediate and legal consequence of the words. ( Stark. on Sland., by Wend., 2 d ed., 203; 2 id., 62, 64; Beach v. Ranney, 2 Hill, 309; Crain v. Petrie, 6 id., 523; Kendall v. Stone, 1 Seld., 14.) Where words are spoken to one person and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such a case are not a natural, legal consequence of the first speaking of the words, but of the wrongful act of repeating them, and would not have occurred but for the repetition; and the party who repeats them is alone liable for the damages. ( Ward v. Weeks, 7 Bing., 211; Hastings v. Palmer, 20 Wend., 225; Keenholts v. Becker, 3 Denio, 346; Stevens v. Hartwell, 11 Metc., 542.) These views dispose of this case as to the right of action in respect to all the words but those spoken to the witness Neiper, as none of them were spoken by the defendant in the presence of the plaintiff, or communicated to the plaintiff by the witnesses to whom they were spoken by the defendant; and there is no proof as to the circumstances under which they were repeated by those witnesses. In the absence of evidence of those circumstances, the general rule, that a repetition of slanderous words is wrongful, applies; hence any damages which resulted from repeating them are a consequence of that wrong, and not a natural, immediate and legal effect of the original speaking of the words by the defendant.
In regard to the words spoken by the defendant to Neiper, it is proved that they were communicated by the latter to the plaintiff, and that Neiper was at the time an intimate friend of the plaintiff. This friendly relation, it is claimed on the part of the plaintiff, rendered the communication of Neiper to him proper; and, being so, it is insisted that the defendant is responsible for the consequences, in the same manner as if the words had been spoken directly to the plaintiff. There are several cases in which it is suggested that circumstances may exist which will justify the repetition of slanderous words, and that when repeated under such circumstances, and damages ensue, the first speaker may be liable in like manner as he would be if the injury had arisen from the words without the repetition. ( Ward v. Weeks, 7 Bing., 211; Keenholts v. Becker, 3 Denio, 346; Olmsted v. Brown, 12 Barb., 657; McPherson v. Daniels, 10 Barn. Cress., 263.) Occasions may doubtless occur where the communication of slanderous words by a person who heard them will be innocent; and it is certainly reasonable that when repeated on such an occasion and damages result, the first speaker should be held responsible for the damages, as flowing directly and naturally from his own wrong. It is not necessary in the present case to decide whether the proposition is law; for, assuming it to be so, and that illness and inability to labor constitute such special damages as will support an action, the evidence in this case wholly fails to show that the damages were a consequence of the words spoken by the defendant to Neiper. The proof is that they were mainly the result of the repetition of the words spoken to the witness Wands, and reports of other persons. It was not until a considerable time after the plaintiff was informed by Neiper what the defendant had said to the latter that he began to be ill; and his illness commenced immediately after the communication to him of what had been said by La Fayette Wands. At that time the plaintiff had been informed of charges made by Fuller to the same effect, and it is a fair conclusion upon the proof that he then knew what the witness Wands says was the fact, that "the story was all over the country." Under these circumstances it is impossible to conclude that what the defendant stated to Neiper produced the damages. (1 Stark. on Sland., 205; Vicars v. Wilcocks, 8 East, 1; Crain v. Petrie, 6 Hill, 522.)
But there is another ground upon which the judgment must be affirmed. The special damages relied upon are not of such a nature as will support the action. The action for slander is given by the law as a remedy for "injuries affecting a man's reputation or good name by malicious, scandalous and slanderous words, tending to his damage and derogation." (3 Bl. Com., 123; Stark. on Sland., Prelim. Obs., 22-29; 1 id., 17, 18.) It is injuries affecting the reputation only which are the subject of the action. In the case of slanderous words actionable per se, the law, from their natural and immediate tendency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved. "But with regard to words that do not apparently and upon the face of them import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened." (3 Bl. Com., 124.) As to what constitutes special damages, Starkie mentions the loss of a marriage, loss of hospitable gratuitous entertainment, preventing a servant or bailiff from getting a place, the loss of customers by a tradesman; and says that in general whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient. (1 Stark. on Sland., 195, 202; Cooks Law of Def., 22-24.) In Olmsted v. Miller (1 Wend., 506), it was held that the refusal of civil entertainment at a public house was sufficient special damage. So in Williams v. Hill, (19 Wend. 305), was the fact that the plaintiff was turned away from the house of her uncle and charged not to return until she had cleared up her character. So in Beach v. Ranney, was the circumstance that persons, who had been in the habit of doing so, refused longer to provide fuel, clothing, c. (2 Stark. on Ev., 872, 873.) These instances are sufficient to illustrate the kind of special damage that must result from defamatory words not otherwise actionable to make them so; they are damages produced by, or through, impairing the reputation.
It would be highly impolitic to hold all language, wounding the feelings and affecting unfavorably the health and ability to labor, of another, a ground of action; for that would be to make the right of action depend often upon whether the sensibilities of a person spoken of are easily excited or otherwise; his strength of mind to disregard abusive, insulting remarks concerning him; and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, and would be thought by them, and should be by all, undeserving of notice, might be exceedingly painful to some, occasioning sickness and an interuption of ability to attend to their ordinary avocations. There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages; and a clear and wise one has been fixed by the law. The words must be defamatory in their nature; and must in fact disparage the character; and this disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result. In this view of the law words which do not degrade the character do not injure it, and cannot occasion loss. In Cook's Law of Def., ( p. 24), it is said "in order to render the consequence of words spoken special damage, the words must be in themselves disparaging; for if they be innocent the consequence does not follow naturally from the cause." In Kelly v. Partington, (5 Barn. Adolph., 645), which was an action for slander, the words in the declaration were "she secreted 1 s. 6 d. under the till, stating these are not times to be robbed." It was alleged as special damage that by reason of the speaking of the words a third person refused to take the plaintiff into service. The plaintiff recovered one shilling damages, and the defendant obtained a rule nisi for arresting the judgment on the ground that the words, taken in their grammatical sense, were not disparaging to the plaintiff and therefore that no special damage could result from them. DENMAN, C.J., said "The words do not of necessity import any thing injurious to the plaintiff's character, and we think the judgment must be arrested unless there be something on the face of the declaration from which the court can clearly see that the slanderous matter alleged is injurious to the plaintiff. Where the words are ambiguous, the meaning can be supplied by inuendo; but that is not the case here. The rule for arresting the judgment must therefore be made absolute." LITTLEDALE, J., said "I cannot agree that words laudatory of a party's conduct would be the subject of an action if they were followed by special damage. They must be defamatory or injurious in their nature. In Comyns' Digest, title `Action on the case for Defamation,' ( D., 730), it is said generally that any words are actionable by which the party has a special damage, but all the examples given in illustration of the rule are of words defamatory in themselves, but not actionable, because they do not subject the party to a temporal punishment. In all the instances put the words are injurious to the reputation of the person of whom they were spoken." TAUNTON, J., said: "The expression ascribed to the defendant `these are no times to be robbed' seems to be saying the times are so bad I must hide my money. If Stenning refused to take the plaintiff into his service on this account he acted without reasonable cause; and in order to make words actionable, they must be such that special damage may be the fair and natural result of them." PATTESON, J., said: "I have always understood that the special damage must be the natural result of the thing done, c. It is said that the words are actionable, because a person after hearing them, chose in his caprice to reject the plaintiff as a servant. But if the matter was not in its nature defamatory, the rejection of the plaintiff cannot be considered the natural result of the speaking of the words. To make the speaking of the words wrongful they must in their nature be defamatory. ( Vicars v. Wilcocks, 8 East, 1.)" It necessarily follows from the rule that the words must be disparaging to character, that the special damage to give an action must flow from disparaging it. In the case last cited the plaintiff actually suffered damage from the defendant's words by their bringing her into disrepute, but the words were not calculated to produce such a result and therefore the action would not lie. In the present case the words were defamatory, and the illness and physical prostration of the plaintiff may be assumed, so far as this part of the case is concerned, to have been actually produced by the slander, but this consequence was not, in a legal view, a natural, ordinary one, as it does not prove that the plaintiff's character was injured. The slander may not have been credited by or had the slightest influence upon any one unfavorable to the plaintiff; and it does not appear that any body believed it or treated the plaintiff any different from what they would otherwise have done on account of it. The cause was not adapted to produce the result which is claimed to be special damages. Such an effect may and sometimes does follow from such a cause but not ordinarily; and the rule of law was framed in reference to common and usual effects and not those which are accidental and occasional.
It is true that this element of the action for slander in the case of words not actionable of themselves — that the special damages must flow from impaired reputation — has been overlooked in several modern cases, and loss of health and consequent incapacity to attend to business held sufficient special damage. ( Bradt v. Towsley, 13 Wend., 253; Fuller v. Fenner, 16 Barb., 333); but these cases are a departure from principle and should not be followed. If such consequences were sufficient, it would not be necessary to allege in the complaint or prove that the words were spoken in the presence of a third person; if spoken directly to the plaintiff, in the presence of no one else, he might himself, under the recent law allowing parties to be witnesses, prove the words and the damages and be permitted to recover. It has been regarded as necessary to an action that the words should be published by speaking them in the presence of some person other than the plaintiff, both in the case of words actionable and those not actionable. (1 Stark on Sland., 360; 2 id., 12; Cooke's L. of Def., 87.)
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 resulting 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.
It is not necessary to decide whether the doctrine which has some support in the books, that a husband may maintain an action for the slander of his wife producing sickness which prevents her attending to her ordinary business, if it conflicts with the principle now advanced, may be maintained upon some ground of exception to the general rule. It is doubtless true that in such cases the law regards more the loss of the wife's services, which alone entitles the husband to sue, than the influence of the words upon her character, and the husband has no control over the effect of the words; whereas, in other cases, the injury to character, as shown by the special damages, is principally regarded, and unusual extraordinary consequences may be assumed to be in some measure under the control of the party complaining. Still, the objection that special damages of that nature are not a fair, ordinary, natural result of such a wrong remains, and this objection appears to be alike applicable and entitled to the same force whether the action be brought by the husband or the party slandered. ( Olmstead v. Brown, 12 Barb., 657; Keenholts v. Becker, 3 Denio, 346.)
See Wilson v. Goit, post.
ROOSEVELT, J., dissented; all the other judges concurring