tort of injurious falsehood. The two torts have an element in common. The defendant in an action for injurious falsehood, as in an action for defamation, has made a false statement respecting the plaintiff, but in the one case the statement attacks the reputation, in the other it does not. "That an action will lie for written or oral falsehoods not actionable per se nor even defamatory where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander."36 As in the case of slander of title, the elements of the cause differ materially from those found in defamation. To maintain an action for injurious falsehood, "it is necessary for the plaintiff to prove (1) that the statement was untrue, (2) that it has been the cause of actual damage, and (3) that it was published maliciously."' 37

36 Bowen, L. J., in Ratcliffe v. Evans (1892), 2 Q. B. 524, 527 (Eng.). See §§ 7 and 8.

37 Salmond, Law of Torts, p. 454. On what is necessary for the plaintiff to prove in an action for defamation, see Chap. IV.

CHAPTER II.

BY AND AGAINST WHOM DEFAMATION MAY BE BROUGHT.

4. Who may sue for defamation.-As a rule the good name of every living person is within the protection of the law of defamation.38 But at common law defamation of the dead gives no civil cause of action; 39 and a suit for defamation, on what was a valid cause, does not survive the death of either defamer or defamed." A child of tender years can be defamed, and can sue through a guardian or next friend. Thus, an action of slander was successfully maintained where the defendant had said of a child of nine years and nine months, "She stole $90; she is a smart little thief."41 But as defamation turns on injury to reputation or business standing, children are to a great extent beyond its reach. So, among adults, some forms of defamation, although apparently general in their character, are recognized by the law only when they are shown to have relation to the plaintiff's business, profession, or calling.42 Thus, "the law has always been very tender

38 Clerk & Lindsell, Torts, p. 549.

39 Sorenson v. Balaban, 42 N. Y. Supp. 654; Bradt v. New Nonpareil Co., 79 N. W. 122 (Iowa), LEADING ILLUSTRATIVE CASES; Broom v. Ritchie, 6 F. 842 (Ct. of Sess., Scotch.).

40 Walters v. Nettleton, 5 Cush. 544 (Mass.).

41 Stewart v. Howe, 17 Ill. 71. It is significant in this case that by the law of Illinois no child under ten might be punished for larceny. And see Hurst v. Goodwin, 114 Ga. 585, 40 S. E. 764, 88 Am. St. Rep. 43. 42 See § 8.

of the reputation of tradesmen, and therefore words spoken of them in the way of their trade will bear an action, that will not be actionable in case of another person.

44

1943

In the nature of things, not so many forms of defamation reach a corporation as reach the natural person; but its good name is one of the chief assets of a corporation, and its right to sue for defamation affecting its trade or business is well established."5 Unlike a corporation, a partnership, in the absence of an enabling statute, may not sue in the partnership name as a legal entity, but the members of the partnership may join in an action for defamation which concerns them as partners. A firm of lawyers successfully maintained an action for libel against a newspaper which published of them, with reference to their defense of a client against a criminal prosecution, that they "had betrayed and sold innocence in a court of justice." 46

5. Who may be sued for defamation.-Legal responsibility for defamation is far-reaching. It is not a question of malice, or of intent, but whether the act of publishing the defamatory statement is in legal effect the act of the defendant. A newspaper publisher whose compositor accidentally placed in the list of bankrupts the name of a firm which was not bankrupt but was to have been

43 Per curiam in Harman v. Delany, 2 Strange 898, 899 (Eng.).

44 See § 8.

45 See the remarks of Dallas, C. J., in Farbenfabriken of Elberfeld Co. v. Beringer, 158 Fed. 802, 804, and see Ohio & Mississippi Ry. Co. v. Press Pub. Co., 48 Fed. 206, LEADING ILLUSTRATIVE CASES.

46 Ludwig v. Cramer, 53 Wis. 193, 10 N. W. 81.

placed in a list of partnerships dissolved, was held legally responsible although he had no personal knowledge of the matter. So the general manager of an unincorporated newspaper association, formed to furnish certain papers with news at a pro rata cost, has been held liable for the publication of a libel of which he knew nothing until two years afterwards, but which was sent to the papers in the association by a reporter employed by the manager.47

47 Shepheard v. Whitaker, L. R. 10 C. P. 502 (Eng.), LEADING ILLUSTRATIVE CASES; Wahlheimer v. Hardenbergh, 145 N. Y. Supp. 161 (Appellate Division). Two judges dissent on the ground that the relation of principal and agent was not established.

CHAPTER III.

THE TWO SPECIES OF DEFAMATION.

99 48

6. Slander and libel.-One can be defamed by words spoken, by words written, by signs, by pictures. The general and original term for all kinds of defamation was for a long time the word "slander." Thus, in a law book which long held a foremost place in England and America, Bacon's Abridgment of the Law, slander is described as "the publishing of words in writing or by speaking." The cases still speak, now and then, of "oral slander." And there is at least one instance in which a modern statute referring in terms only to "slander" has been judicially construed as including "libel" also. But as a rule, modern usage limits "slander" to cases in which the defamatory statement is made through words spoken, or "in some other transitory form, whether visible or audible." 50 A gesture, a hiss, or "other inarticulate but significant sound," may be a slander.51 When the defama

48 Bacon Abridg., "Slander,'' vol. 9, p. 28. So in Espinasse's Nisi Prius, 496 (Eng. 1793).

49 Johnson's Adm'x. v. Haldeman, 43 S. W. 226 (Ky.), LEADING ILLUSTRATIVE CASES. Under this decision, as late as 1897, "an action for libel

is an action for slander."

50 Salmond, Law of Torts, p. 402.

51 Salmond, Law of Torts, p. 402. "There are one or two modern developments which may give rise to interesting questions, e. g., the gramophone, the photograph, the cinematograph." Jenks, Digest Eng. Civ. Law, P. 500.