CHAPTER IV.

THE PLAINTIFF'S CASE IN DEFAMATION.

10. The prima facie cause.-The plaintiff's first pleading in an action for defamation frequently does not and should not show all the substantive facts of the complete case which the court will have to consider before entering judgment. A complete case in defamation is pleaded not as an entirety, but by stages. The defendant, perhaps, may be able to claim a privilege for the publication of an admittedly defamatory statement, and the plaintiff may be aware of this. On the other hand, the plaintiff may be able to meet the defense of privilege by a showing of actual malice in the defendant when he used his privilege, and the defendant may be aware of this. But in framing his first pleading, the plaintiff will make no mention either of the defendant's possible claim of privilege, or of the counteracting fact of actual malice in using the privilege. So, the defendant, in framing his plea or answer, will not anticipate the plaintiff's possible reply to it. Each will content himself with his prima facie cause of action or prima facie defense. In this chapter the elements of the plaintiff's prima facie cause in defamation will be considered. The defendant's prima facie defense and also the plaintiff's possible response will occupy the two following chapters.

11. Defamatory statement.-The plaintiff in his first pleading must affirmatively show a defamatory statement by the defendant."1 A "mere intention

to vex and annoy will not make language defamatory which is not so in its own nature. An imputation of conduct not in itself really censurable, however distasteful or objectionable the conduct may be according to the notions of certain people, is not a legal injury. 'Would it be libellous,' it has been asked, 'to write of a lady of fashion that she has been seen on the top of an omnibus, or of a nobleman that he was in the habit of burning tallow candles?' There is a distinction between imputing what is merely a breach of professional etiquette and what is illegal, mischievous, or sinful; between, in fact, matters of taste and matters of crime. Thus it has been decided that in humble life 'want of womanly delicacy' is not actionable per se. Nor is it a libel to write of a medical man that he met

homeopathists in consultation. A homeopathist may be a perfectly competent and qualified practitioner, and the imputation therefore was not of professional misconduct but simply of a breach of an arbitrary rule."72

Latent defamation. The defamatory character of the statement may appear upon its face but "no statement is necessarily and in all circumstances defamatory. There is no charge or imputation, however serious on the face of it, which may not be

71 On the affirmative nature of Defamation, see Chap. III, §§ 8 and 9. 72 Clerk & Lindsell, Law of Torts, p. 551, referring to and quoting from the remarks of Pollock, C. B., in Clay v. Roberts, 8 L. T. N. S. 398 (Eng.), and the case of A. B. v. Blackwood, (1902) 5 F. 25 (Ct. of Sess., Scotch).

explained away by evidence that in the special circumstances of the case it was not issued or understood in a defamatory sense. It may be shown to have been made in jest, or by way of irony, or in some metaphorical or secondary innocent sense, and that it was or ought to have been understood in that sense by those to whom it was made. Conversely, no statement is necessarily and in all circumstances innocent. An allegation which on the face of it contains no imputation whatever against the plaintiff may be proved from the circumstances to have contained a latent and secondary defamatory sense. It may suggest an imputation which it does not express. Thus, even the language of praise may be sued on as defamatory, on proof that it was used in the way of irony."73

The innuendo. When the defamation is apparent on the face of the statement, it is prima facie actionable; and the burden is on the defendant to show that it is not defamatory. On the other hand, if the statement is apparently innocent, the burden is on the plaintiff to show the defamatory import, as he contends, of the statement. This he may do through a "colloquium." Or, if the application of the defamatory statement is possibly not clear, the plaintiff should point it out in his pleading through an "innuendo." 75

Pleading the statement. The need of such explan73 Salmond, Law of Torts, p. 409, referring to Boydell v. Jones, 4 M. & W. 446, 51 R. R. 676 (Eng.).

74 Carter v. Andrews, 16 Pick. 6 (Mass.).

75 The word from the Latin innuere, to nod at, to hint at, was used when the pleading was in Latin. In modern pleadings the word "meaning" is more frequently used; but the Latin term still designates the method.

atory and identifying statements in an action for defamation is due to a rule of common law pleading which has largely survived under code pleading.76 It was in vain for the plaintiff to allege that the defendant published a libel concerning the plaintiff in his trade "purporting that his beer was of bad quality, and sold in deficient measure," or that the defendant "charged and asserted, and accused the plaintiff, a tradesman, of being insolvent."" defamatory statement itself must be set forth in its very terms; and the plaintiff's first pleading must profess so to set it forth.78 An averment that the defamatory statement was "to the effect following," or "in substance as follows," setting out the libel in words, was bad on a motion in arrest of judgment, even when the words themselves were set out.79

The

Ironical statements. Thus, a plaintiff sometimes finds it necessary to assert by explanatory matter in his pleading that a statement, quoted verbatim in the pleading, which is laudatory on its face, was in the circumstances of its publication a defamatory statement. In Boydell v. Jones,so the plaintiff, a lawyer, succeeds through his innuendo, in showing that the phrase "an honest lawyer," applied to him by the defendant, was defamatory.81

76 See subjects, PLEADING, PRACTICE.

77 Cook v. Cox, 3 M. & Sel. 110 (Eng.).

78 Chitty, Pleading (16th Am. ed.), p. 419.

79 Chitty, Pleading (16th Am. ed.), p. 420, and cases there cited; Harris v. Warre, 4 C. P. D. 125 (Eng.).

80 4 M. & W. 446 (Eng.).

81 Good illustrations of the use of the innuendo in present day pleading under the code will be found in the statement of the case in Triggs v. Sun Printing and Publishing Association, 179 N. Y. 144-151, LEADING ILLUSTRATIVE CASES.

12. Of and concerning the plaintiff. The plaintiff must show also, in his first pleading, that the defamation was of and concerning him. It is not necessary, however, that the reference to the plaintiff be express. It is sufficient if it be so understood even by one person.82 So the publication of the plaintiff's picture over the name of another person may be defamatory of the plaintiff, if the picture is recognizable and published as a part of a defamatory statement, and this although the statement also does not name the plaintiff.83

Defamation of a class. If the defamation is of a class, and not of the plaintiff individually, he cannot succeed in his action.84 But although the defamatory matter may appear only to apply to a class of individuals, yet if the descriptions in such matter are capable of being, by innuendo, shown to be directly applicable to any one individual of that class, an action may be maintained by him for the publication. 85

In Le Fanu v. Malcomson, for instance, the owner of a factory in Ireland sued for libel because of an article in the defendant's newspaper stating that "the cruelties of the slave trade or the Bastille are not equal to those practiced in some of the Irish factories." Here there was no direct reference to the plaintiff and no mention specially of the plaintiff's factory. But having established the reference

82 Salmond, Law of Torts, p. 411.

83 Peck v. Tribune Co., 214 U. S. 185, 29 Sup. Ct. Rep. 554, L. Ed., LEADING ILLUSTRATIVE CASES.

84 Comes v. Cruce, 85 Ark. 789, 107 S. W. 185, and case there cited. 85 Le Fanu v. Malcomson, 1 H. L. Cas. 637 (Eng.).