Allegations of time, and space,

CHAPTER VIII.

WHAT LANGUAGE IS ACTIONABLE.

Language must be such as does or does not occasion damage-What is meant by actionable per se, and actionable by reason of special damage-What language concerning a person as such, published orally, is actionable per se-What language concerning a person as such, published in writing, is actionable per se— What language concerning one in an acquired capacity, is actionable per se-What language concerning a person is actionable by reason of special damage-What language concerning the affairs of a person, his property, or his title thereto, is actionable.

$146. All language concerning a person or his affairs, which, as a necessary or natural and proximate consequence, occasions him pecuniary loss, is prima facie actionable (§§ 57, 59, 70). Language must be either (1) such as necessarily, in fact, or by a presumption of evidence, occasions damage to him of whom or whose affairs it is con cerning; or, (2) such as does not necessarily, or as a necessary consequence, but does by a natural and proximate consequence, occasion damage to him of whom or whose affairs it is concerning; or, (3) such as neither as a necessary nor as a natural and proximate consequence occasions damage to him of whom or of whose affairs it is concerning.1

1 In the jurisprudence of Louisiana, a distinction is not made between words actionable and words not ac tionable, as the basis of damages in a suit for slander, where no special damages are proved. (Feray v. Foote,

12 La. Ann. 894; Miller v. Holstein, 16 La. Ann. 389; Daly v. Van Benthuysen, 3 La. Ann. 69; Tuscan v. Maddox, II La. Ann. 206; Cass v. Times, 27 La. Ann. 214; Spotorno v. Fourichon, 4 So. Rep. 71.)

The loss which ensues as a necessary consequence," is termed damage, the loss which ensues as a “natural and proximate consequence," is termed "special damage." One and the same set of words may both necessarily occasion damage, and also occasion damage as a natural consequence.

$147. Language of the first of these classes is commonly termed libelous per se, or actionable per se, because its publication confers a prima facie right of action, and is prima facie a wrong without any evidence of damage other than that which is implied or presumed from the fact of publication. Probably language of this class might more correctly be termed injurious per se, or language which imports damage.

§ 148. The publication of language of the second of these classes does not, per se, confer a prima facie right of action, and is not, per se, a prima facie wrong. It confers a right of action only in those cases in which, as a natural and proximate consequence of the publication, loss (special damage) has in fact ensued to him of whom or of whose affairs the language was concerning.

$149. The publication of language of the third of these classes cannot in any event amount to a wrong, and cannot in any event confer a right of action.

150. We attempted to explain, in Chapter IV, that pecuniary loss, actual or presumed, is the gist of the action for slander or libel, and we stated (pp. 42, 43) the basis as we suppose, of the distinction between words actionable per se and words only actionable by reason of special damage, to consist solely of a rule of evidence; the rule by which courts decide what words

1 Words mean written or spoken words. (Menter v. Stewart, 2 How. [3 Miss.] 698.) And an action for

shall be considered by

written slander may be an action for "slanderous words," within the Vermont judiciary act. (Parsons v.

their publication necessarily to occasion pecuniary loss or damage. The courts, while exercising this power, have failed to promulgate a formula which can be applied with any degree of certainty, to distinguish the cases in which damage is necessarily implied, from the cases in which no such implication occurs, and in which, to give a right of action, special damage must be proved.

§ 151. As the injurious, or presumed injurious effect of language depends upon whether (1) the language concerns a person or a thing, (2) or the person as such or in some acquired capacity, or (3) in certain cases, whether the language be published orally or by writing, it will be neces sary to consider the topic of actionable language under the following heads:

I. What language concerning a person, as such, published orally, is actionable per se.

II. What language concerning a person, as such, published in writing, is actionable per se.

III.—What language concerning one in an acquired capacity or special character, as in a business, profession, or office, or as a partner, or as heir-at-law, is actionable per se.

IV. What language is actionable by reason of special damage.

V. What language concerning things, as the affairs of a person, his property, or his title thereto, is actionable.

§ 152. What language concerning a person, as such, published orally, is actionable per se. Although it has been said that "The law of England defines with much greater distinctness than is usually found in other codes,

Young, 2 Vt. 434; but see § 53. ante.)
And in Hall v. Warner (T. 24 Geo.
III), Tidd, 861, held that an action for

libel was not within the statute 21 Jac. I, ch. 16, relating to actions for "slanderous words."

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the limits of the civil action for oral slander in the absence of special damage," it is nevertheless true that "There is not perhaps so much uncertainty in the law upon any subject as when words shall be in themselves actionable." "The line of demarcation seems never to have been satisfactorily defined," and is "more satisfactorily determined by an accurate application of the principles upon which actions on the case for words depend, than by a reference to adjudged cases, especially those in the more ancient authors." The diversity of opinion as to what words should be treated as imputing damage, or actionable per se, arose from a wavering in the minds of the judges between two opposite inconveniences. The fear of encouraging a spirit of vexatious litigation, by affording too great a facility for this species of action, was contrasted with the mischief resulting to the public peace from refusing legal redress; and according as the former or latter of these considerations preponderated, so was the rule of decision rigid or relaxed."

§ 153. Several of the States provide by statute what words shall be actionable; thus, in Mississippi, Virginia, and Georgia, it is enacted that all words which, from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall be actionable. In Tennessee, imputing orally

1 Prelim. Discourse to Starkie on Slander, XXX (30) note v; see note to § 57, ante. In Scotland, any words that produce "uneasiness of mind are said to be actionable. (Borthwick on Libel, 184, note.) But words merely uncivil are not actionable. In Iceland, to say of a gentleman, he did menial labor, is punishable, (Blackwood's Magazine, Feb'y, 1869.) Mere words of obloquy, not written, are not actionable. (Johnson v. Brown, 4 Cranch C. C. 235.)

2 Spencer, J., Brooker v. Coffin, 5 Johns. 192.