diately accompanying the utterance of the words, or by the utterance at other times of other and similar defamatory words having reference to the subject matter of the words charged. The difference between implied malice and express malice is a difference in kind, rather than in degree, and this distinction should be borne in mind in considering this question." But this is only an indirect recognition of the fact that so far as the plaintiff's prima facie case is concerned "malice is no more an essential element in the wrong of defamation than in that of trespass or conversion."4

17. Whether actual damage is necessary.— "Torts are of two kinds-namely, those which are actionable per se, and those which are actionable only on proof of actual damage resulting from them. The law sometimes says to a defendant: 'You will be held liable if you do such and such an act. At other times it says merely: 'You will be held liable if, in consequence of such and such an act, damage is inflicted on the plaintiff. It is a characteristic feature of the tort of defamation that it falls within both these classes. Libel and some forms of slander are actionable without a showing of actual damage;" most forms of slander, however, require a showing of actual damage.

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Special damage. When special damage is necessary for the existence of a cause in slander, the

3 Gambrill v. Schooley, 52 Atl. 500, 508 (Md.).

4 See Salmond, Law of Torts (2nd ed.), p. 420, note.

5 Salmond, Law of Torts (2nd ed.), p. 11.

6 See Chap. III, §§ 2 and 3.

7 Cooley, Torts (Students' ed.), p. 110.

damage must appear, in the plaintiff's statement of his case, to be the loss of some definite material advantage, and not merely the loss of reputation.s A general averment that the plaintiff "has been damaged in her name and fame" is not sufficient." But it is necessary that the plaintiff's first pleading shall "set forth precisely in what way the special damage resulted from the speaking of the words. It is not sufficient to allege generally that the plaintiff has suffered special damages, or that the party has been put to great costs and expenses. By special damage in such a case is meant pecuniary loss; but it is well settled that the term may also include the loss of substantial hospitality of friends. Illustrative examples are given by the text-writers in great numbers, among which are loss of marriage, loss of profitable employment, or of emoluments, profits, or customers; and it was very early settled that a charge of incontinence against an unmarried female, whereby she lost her marriage, was actionable by reason of the special damage alleged and proved."

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18. Summary of essentials.-These, then, are the essentials of the plaintiff's prima facie cause in libel: (1) a publication by the defendant; (2) of a defamatory statement; (3) concerning the plaintiff. In most cases of slander there is a fourth essen

8 Roberts v. Roberts, 5 B. & S. 384 (Eng.). Pollard v. Lyon, 91 U. S. 225.

10 Per Mr. Justice Clifford, in Pollard v. Lyon, 9 U. S. 225, referring to Cook v., Cook, 100 Mass. 194; Moore v. Meagher, 1 Taunt. 42; Williams v. Hill, 19 Wend. 306; Davis v. Gardiner, 4 Co. 16 b. pl. 11 (Eng.); Reston v. Pomfreicht, Cro. Eliz. 639 (Eng.).

tial, namely: (4) actual damage proximately resulting to the plaintiff. But there are four rather limited classes of slander in which actual damage is not essential to the existence of the plaintiff's prima facie cause.11

If the plaintiff's first pleading fails to show any of these essentials, his case is open to demurrer. If his pleading shows them all, but he fails, under a general denial, to carry the burden of proof as to any one of them, his case fails on the evidence. If he succeeds in establishing all these elements, he is entitled to a judgment unless the defendant has established one of the affirmative defenses recognized in the law of defamation.

11 See Chap. III, § 8. This enumeration does not include a "libel" which is an injurious falsehood but not defamatory.

CHAPTER V.

THE DEFENDANT'S RESPONSE TO A CHARGE OF DEFAMATION.

13

19. In general.-As against a prima facie cause in defamation pleaded by the plaintiff, the defendant, in addition to the usual responses raising an issue in law, or an issue of fact, or setting up new matter in discharge,12 has an unusual range of affirmative responses in justification or excuse. These, including some responses that have been attempted and found wanting in defamation, will be noticed in this chapter. It is characteristic of them all that they are coincident with the facts set up by the plaintiff, although in legal theory they form no part of the plaintiff's prima facie case.

20. Truth as a defense.-If the defendant pleads and proves that the charge published by him against the plaintiff was true as made, it will be, in a civil action at common law, an absolute defense.11 Nor will it, at common law, impair this defense if it appear that the publication was made by the defendant from malice towards the plaintiff.15

In this respect, however, the rule has been

12 See the subject, PLEADING IN CIVIL ACTIONS, with references to the demurrer, and the plea or answer.

13 On the nature of such responses in general, see subject, PLEADING IN CIVIL ACTIONS, in this work.

14 McPherson v. Daniels, 10 B. & C. 272 (Eng.).

15 Salmond, Law of Torts (2nd ed.), p. 416.

changed in some states, by constitutional or statutory provisions. Thus, under the Nebraska constitution one who publishes a libel "may not exempt himself from liability for libelling another simply by showing that the charge published was true, but must go further and show that the publication was made under such circumstances as would justify the conclusion that he acted with good motives and for justifiable ends.” 16

An answer of the truth of the charge is not a direct denial of the plaintiff's cause of action, but a collateral matter which, if established by the defendant, will bar a recovery." The defendant, therefore, carries the burden of proof. And his showing of the truth must be "as broad as the defamatory charge." 18

Whether repetition on authority is a defense. It was once supposed to be an excuse in an action for defamation if the defendant could show that he had merely repeated the defamatory statement and at the time had given the name of his informant.19 But this view was rejected in England in the year 1829, as to both libel and slander.20 The doctrine is now established that it is no excuse for his publication of defamation if the defendant shows that he re

16 Per Ragan, C., in Neilson v. Jensen, 56 Neb. 430, 76 N. W. 866, applying Art. I, § 5, of the state constitution.

17 Atwater v. Morning News, 67 Conn. 504, 34 Atl. 865.

18 Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381; Thompson v. Pioneer Press, 37 Minn. 285, 33 N. W. 856.

19 Northampton's Case, 12 Coke 134 (Eng.); Woolworth v. Meadows, 5 East 463, 469 (Eng.).

20 As to libel, by De Crespigny v. Wellesley, 5 Bing. 392, 401 (Eng.). As to slander, by McPherson v. Daniels, 10 B. & C. 263 (Eng.).