hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. It is bootless now, to inquire whether the courts, which first dealt with this matter, did not unduly extend the privileges the constitutional provision intended to secure, by denying all power to deal in advance with the emanation of slander and libel by one private person upon another, where the only purpose of uttering them is to acquire personal gain, by wrongfully and wantonly aspersing a fellow man's reputation and business standing. However that may be, it was the law in England until changed by statute, and is the settled doctrine in this country, that a court has no such power.'' 85 26. Damages.-The damages awarded a successful plaintiff in an action for defamation are normally "compensatory" damages. There may be a departure from this in two directions, the damages may be "nominal," or in some cases they may be "punitory," or "exemplary." The differences here belong in the main to the general doctrine of Damages and will be found elsewhere in this work.86 It 85 Jones, D. J., in Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co. (1909), 171 Fed. Rep. 553, 556. 86 See subject, DAMAGES. should be observed, however, that in defamation actions the amount of the damage rests to a peculiar degree in the discretion of the jury. In actions for libel and in cases of slander per se,87 the plaintiff "need only lay before the jury the words or writing of which he complains and leave them to say to what amount of compensation he is entitled from the mere fact of such imputation having been made." 88 Thus, in a suit for slander in which the defendant suffered a default judgment and the plaintiff offered no evidence of special damage, it was held that a verdict for £40 should not be disturbed.89 In estimating compensatory damages, the jury may consider the plaintiff's loss of reputation, his shame and mortification, and injury to his feelings. Such damages may be awarded without having been specifically pleaded or proved. They are known as "general" damages. In addition, the jury, in awarding compensatory damages, may give "special" damages, when the plaintiff alleges and proves actual pecuniary loss as the proximate result of the defamatory charge. But courts have always exercised the right of revising the amount of damages allowed, when satisfied either that the sum awarded was perversely excessive or was the result of some gross error on a matter of principle, or that the jury misconceived the case, or were influenced by undue motives.90 87 See § 8. 88 Clerk & Lindsell, Torts, p. 618. 89 Tripp v. Thomas, (1824) 3 B. & C. 427 (Eng.). 90 Hall, C. J., in Hassett v. Carroll, 81 Atl. 1013, 1020. BIBLIOGRAPHY. See the subject of Defamation, or Libel and Slander, in Pollock, Torts; Salmond, Torts; Burdick, Torts; Cooley, Torts; Clerk & Lindsell, Torts; Jaggard, Torts. See also the article on Libel and Slander, in 25 Cyc., 225-567, and in Halsbury's Laws of England, Vol. 18, pp. 603-746; and The History of the Law of Defamation, by Mr. Van Vechten Veeder, in Columbia Law Review, Vol. 3, pp. 546-573; Vol. 4, pp. 33-56, republished in 3 Anglo-American Legal Essays, pp. 446-473. Larger treatises on Defamation are Odgers, Libel and Slander, an authoritative English work frequently cited on both sides of the Atlantic; Newell, the Law of Slander and Libel; Starkic, Slander; Townsend, Slander and Libel. Editions: The editions of the text-books referred to in the footnotes of this article are as follows: Burdick on Torts, 2nd ed. (1908); Clerk & Lindsell, Law of Torts, 4th London ed., with Canadian Notes (1906); Cooley on Torts, (students' ed.) (1907); Jaggard, Law of Torts, 1st ed. (1895); Salmond, Jurisprudence, 3rd ed. (1910); Salmond, Law of Torts, 2nd ed. (1910). LAW OF TORTS PART VI MALICIOUS PROSECUTION BY JOHN CHARLES TOWNES, LL.D.* 1. Introduction. The purpose of all municipal law is to protect society and individuals in their just rights. The purpose of tort law is to protect individuals in such of their rights as are approved by the sovereign, irrespective of the consent or agreement of the persons owing the duties correlative thereto. In most instances, in determining whether or not such a right has been violated, the law looks only to the conduct of the alleged wrongdoer, without regard to the motive actuating the conduct. In some instances, however, from considerations of public policy, this rule is disregarded, and conduct is declared tortious and actionable only when prompted by evil motive. In these exceptional cases the improper intent is as much an essential part of the tort as the conduct induced by it. * Dean and Professor of Law, Law Department, University of Texas; former president of the Association of American Law Schools; former judge of the district court of Texas. Author: "Studies in American Elementary Law"; "General Principles of the Law of Torts"; "Law Books and How to Use Them"; "Civil Government in the United States and in Texas"; "Elementary Civics.' |