actions for him, but overhearing C say, "D is a much better lawyer than A," he takes away his business from A and gives it to D. Again, E is a physician, and F says of him, "He is nowhere as a doctor compared to G," whereby H employs G instead of E, as he had intended to do. Here are words spoken of persons in their respective professions, which not only tend to their injury, but actually do them damage, yet they do not render the speakers liable to suits for damages.

§ 1265. Other Words not Actionable Except in Case of Special Damage. -No other words except those mentioned in the three last divisions1 are actionable per se. Thus to accuse a man of fraud, dishonesty, immorality, or any vicious and dishonorable (but not criminal) conduct, or to otherwise make a charge calculated to wound his feelings or disgrace him, is not actionable, unless it has produced as its natural and necessary consequence some pecuniary loss to the plaintiff." Therefore it is not actionable per se to say of a man, "Thou art a scurvy bad fellow"; or that he is a swindler; or to charge a man with immorality or adultery, or drunkenness," or that he is insane, or that he, a government employee, spoke disrespectfully of the Secretary of the Treasury and others of

1 See §§ 1246–1248.

2 See ante, §§ 1246, 1247; Alfele v. Wright, 17 Ohio St. 238; 93 Am. Dec. 615. But in Ohio, on sentimental grounds apparently, the plaintiff being a young woman, it was held actionable per se to call a person a hermaphrodite: Malone v. Stewart, 15 Ohio, 319; 45 Am. Dec. 577; Alfele v. Wright, 17 Ohio St. 238; 93 Am. Dec. 615. See Abrams v. Foshee, 3 Iowa, 274, 66 Am. Dec. 77, where this case is criticised. And in the South in slavery times, it was held that to charge a white person with being a mulatto, or having negro blood in him, was actionable per se, because it degraded him: Elden v. Legore, 1 Bay, 171;

his superiors; or charging that a person without consideration obtained notes from one whose mental condition incapacitated him for business; or to say of one that he is a man of bad character, in the neighborhood in which he lives, as regards truth and veracity, and that the speaker would not believe him on oath; or charging one with being a bastard; or charging a woman with being an inhuman step-mother, and with beating her child over the head unmercifully with a club; or that B, a woman, had a child, and that A took it away and buried it; or charging that "on the night the ballot-boxes were stolen from the sheriff's office defendant was up-town, . . . . and saw plaintiff sitting on the court-house steps at nine o'clock at night"; or charging that the plaintiff administered morphine to another on the day he made his will, and that if it had not been for that the plaintiff's daughters would not have got what they did. In a late case, the defendant charged the plaintiff with "bearing down" the scales when defendant's stock was weighed, and "lifting up" when plaintiff's was weighed. The first part of the charge imputed an act of wanton

Knight v. Blackford, 3 Mackey, 177, 51 Am. Rep. 772, the court saying: "Suppose I should go to the Secretary of the Treasury, and say to him that a certain clerk in his department was in affluent circumstances and did not need office, and that I, on the other hand, did need it; that the Secretary should turn him out on the strength of that statement, and put me in. That would be a damaging statement on my part, and yet no action for slander could be based upon it. So that the question which meets us on the threshold of the case is, whether the words alleged in this declaration were defamatory and scandalous. It will be observed that the defendant is not charged with saying anything about the plaintiff's character, but with saying that the plaintiff disparaged somebody's else character; that is to say, that of the Secretary of the Treasury, and that of some of his sub.

mischief which was of no

ordinates. It is not even complained
that the defendant accused the plain-
tiff of falsehood in making these
charges against the Secretary and
others. If they were true, the plain-
tiff would have had a right to make
them. The declaration does not com-
plain that the defendant even imputed
false statements to the plaintiff, much
less any more serious moral delin-
quency. The words, therefore, do not
disparage the character of the plaintiff
at all, and we cannot conceive how an
action can be grounded upon allega-
tions that impute nothing wrong.'
2 Trimble v. Anderson, 79 Ala.

514.

benefit to plaintiff, and hence was not a charge of fraud; and the offense of using false pretenses was not charged, unless it was stated that plaintiff was weigh-master, and had charge of the weighing.1 Words imputing unchastity or adultery to a woman, married or unmarried, however gross and injurious they may be, are not actionable, unless she can prove that they have directly caused her special damage;2 nor to charge a young woman with selfpollution.3

1 Wilkin v. Tharp, 55 Iowa, 609.

Lynch o. Knight, 9 H. L. Cas. 577; Roberts v. Roberts, 5 Best & S. 384; Allsop v. Allsop, 5 Hurl. & N. 534; Shafer v. Ahalt, 49 Md. 171; 30 Am. Rep. 456. The word "bitch," when applied to a woman, does not, in its common acceptation, import whoredom in any of its forms, and therefore is not slanderous per se: Schurick v. Kollman, 50 Ind. 336. But the word applied to a woman, where it was

meant and understood to impute whoredom, is actionable per se: Logan v. Logan, 77 Ind. 558. To say of a married woman that she is pregnant, or that she is in a fix" (meaning by local usage that she is pregnant), is not actionable, but if spoken of an unmarried female, such words are actionable: Ackerv. McCullough, 50 Ind. 447. See ante, Words Charging Crime.

3 Anonymous, 60 N. Y. 262; 19 Am. Rep. 174.

§ 1266. Libel Defined-Form of. -Slander is oral defamation. Libel is defamation published by means of writing, printing, pictures, images, or anything that is the object of the sense of sight.' The writing may be on paper, parchment, copper, wood, or stone, or on any kind of substance in fact, and may be made with any instrument, pen and ink, black lead-pencil, or in chalk or paint.3 So any mark or sign exposed to view, and conveying a defamatory meaning, is a libel; as, an anagram or an allegory, burning in effigy, a caricature or scandalous painting," a chalk-mark on a wall,' a gallows placed before a man's door, or an effigy," or hieroglyphics,10 or ironical praise," or a picture,' or a rebus,13 or a statue, or a notice of the death of a living

13

1 Cooley on Torts, 193.

14

12

person, published maliciously, and calculated to subject the person to ridicule.'

ILLUSTRATIONS.-The defendant set up a lamp on the wall adjoining the plaintiff's dwelling-house, and kept it burning in the daytime, thereby inducing the passers-by to believe that plaintiff's house was a brothel. Held, a libel in effigy: Jefferies v. Duncombe, 2 Camp. 3; 11 East, 226. A railroad company supplied its agents with a list of discharged employees, stating the reasons for discharge. The reason in one case stated was "stealing," and the charge was unfounded. Held, a libelous publication: Bacon v. R. R. Co., 55 Mich. 224; 54 Am. Rep. 372. The following written charge was published by A: "Charge 4. Refusing to correct George C. in his statement as a witness before Esq. B, when I believe he (J. C.) knew his (George's) statement was not true." Held, a libel by the writer on George C.: Coombs v. Rose, 8 Blackf. 155.

§ 1267. What Libelous Words are Actionable. A libel is any publication (not oral) which exposes the person complaining to hatred, contempt, ridicule, or obloquy, or tends to injure him in his trade or calling, impairs his standing in society, or causes him to be shunned or avoided by his neighbors. Thus it has been held libelous to write or print of a man that he, a Presbyterian, was guilty of "gross intolerance" in not allowing his hearse to be used at the funeral of his Roman Catholic

' McBride v. Ellis, 9 Rich. 313; 67 Am. Dec. 553.

2 Cropp v. Tilney, 3 Salk. 226; O'Brien v. Clement, 15 Mees. & W. 435; Villers v. Monsley, 2 Wils. 403; Colby v. Reynolds, 6 Vt. 489; 27 Am. Dec. 574; Fonville v. McNease, Dud. (N. C.) 303; 31 Am. Dec. 556; Obaugh v. Finn, 4 Ark. 110; 37 Am. Dec. 773; Miller v. Butler, 6 Cush. 71; 52 Am. Dec. 768; White v. Nichols, 3 How. 266; Armentrout v. Moranda, 8 Blackf. 426; Torrance v. Hurst, 1 Miss. 403; Newbraugh v. Curry, Wright, 47; Lansing v. Carpenter, 9 Wis. 540; 76 Am. Dec. 281; Commonwealth v. Clap, 4 Mass. 163; 3 Am. Dec. 212; Dexter v. Spear, 4 Mass. 115; Bergmann v. Jones, 94 N. Y. 51; Huse v. InterOcean Company, 12 Ill. App. 627; Holly v. Gregg, 74 Iowa, 563; Adams

66

v. Lawson, 17 Gratt. 250; 94 Am. Dec. 455. Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immorality, vice, or dishonorable conduct, or has been accused or suspected of any such misconduct; or which suggest that the plaintiff is suffering from any infectious disorder; or which have a tendency to injure him in his office, profession, calling, or trade. And So, too, are all words which hold the plaintiff up to contempt, hatred, scorn, or ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society": Odgers on Libel and Slander, 22.