cial damages.-A satisfactory enumeration of such cases can not be made. Any defamatory words that produce actual damage may give a cause of action. Words are said to be defamatory in this sense when they hold a person up to public ridicule, contempt, hatred or disgrace. The damages must, however, be such as are deemed to be the proximate result of the slander. If the damages are remote there is no cause of action. It is essential that the damages be pecuniary or material, such as the loss of a marriage, loss of employment, loss of profits or injury to business. Mere mental anxiety and distress are not such damages as will support the action.

§ 86. Libel.-A libel need not necessarily be in writing or print. Any caricature, scandalous painting, drawing or effigy may constitute a libel. Any spoken charge that is actionable per se will if published in writing be a libel. Hence, it is libelous to charge in writing, crimes, diseases or scandals affecting occupations. But libel goes further, its wider range being based upon the deliberate nature of the act, its permanent form and the greater damage caused.

§ 87. Definition.-Any false and defamatory printing, writing, sign, picture, representation or effigy, tending to expose any person to public hatred or ridicule, deprive him of the benefits of public confidence or social intercourse, or designed to blacken and vilify the memory of a deceased person and tending to scandalize and disgrace his relations and friends, is a libel.

It is not necessary to prove special damages in any action for libel. If there is a libel at all, it is a libel per se.

It is not necessary that the libelous language impute

crime or even disgraceful conduct; it is sufficient if the person is rendered contemptible or ridiculous.

As to charges affecting one's occupation, or imputing diseases, it is not essential in libel that they be made in the present tense, as is the case in slander. To impute by libel past misconduct or past diseases may also be actionable.

§ 88. Newspapers.-The constitutional guaranty of freedom of the press is often misconstrued, and it is popularly supposed that newspapers by virtue of their public nature are not held to so strict accountability for libel as mere private individuals. The law recognizes no such distinction. Freedom of the press means that there shall be no censorship by those in authority. Any man is free to write or publish whatever he chooses of another, but subject to the legal consequences if the publication be defamatory. Newspaper and individual must defend upon the same legal grounds.

We pass now to the principles common to both libel and slander.

§ 89. Publication. It is essential, in order to give an action for libel or slander, that the defamatory words shall have been published. By publication is meant communication to a third person. If the words be heard or read only by the person against whom they are directed, there is no liability; for his reputation, that is, the estimation in which he is held by others, is not thereby injured. And if such person repeat the words, or show the letter to others, he has no cause of action, for the publication was his own act. It is not necessary that the author shall have intended publication, for he is liable for its unintended publication if it happens through his mistake or negligence. So if one shouts a slander he is

not liable if no one hears it, but he is liable if there is a listener known or unknown. But the author is probably not subject to absolute liability. For instance, if X writes a libel on Y, addresses it to him and locks it up in his desk and a thief breaks into his office and steals and reads the letter, the author would not be liable. However, should X give the letter to Z thinking him to be Y, X would be liable for the publication since it was published through his mistake. Likewise, if X address a libel to Y and it is known that it is possible or probable that the letter will be opened and the libel read by Y's private secretary and the secretary does so, X is liable to Y, for the publication may then be chargeable to his negligence.

Where two persons composed a libel together and sent it to the plaintiff, it was held to be a publication, the part that each took being a publication in the hearing and knowledge of the other. Every repetition of a slander or libel is a fresh publication, and gives a cause of

action.

The law regards communications between husband and wife as privileged, therefore communication by either to the other of defamatory matter against others is not deemed to be a publication. But if such communication be in the hearing or to the knowledge of a third person, there is a publication. A slander or libel against either a husband or wife, if heard or read by the other, is a publication.

§ 90. Construction. The general rule is that words are to be understood according to their plain and natural import, and when the language is clear and unambiguous the court will not, ordinarily, allow the meaning to be varied by testimony that the author intended or the hearers understood them in a different

sense. For, ordinarily, the presense or absence of an intention to injure can not change the effect of the language; and, on the other hand, the fact that some persons misunderstood the language ought not to determine its quality, good or bad. In the large majority of cases, however, there is room for question whether the language is to a greater or less degree injurious in its meaning. Wherever by reason of any local or provincial usage words have an unusual meaning, or wherever by reason of any special circumstances the language has a peculiar effect, the plaintiff may declare what such meaning or innuendo is, and such facts may be given in evidence and the language construed in the light of them. Such facts may be shown whether the result be to establish either an innocent or a harmful meaning. In cases where the language is ambiguous in any respect, the law has undergone some modifications. In the earlier actions the rule was that the words were to be construed in the most favorable sense, the theory being that such construction would suppress litigation. Later, it was held that words should be taken in an unfavorable sense, it being supposed that, by affording legal remedy, resort to personal violence for redress would be prevented. Still later the well-recognized rule was that the courts should affix to the words a plain and natural meaning. The modern rule, however, sustained by the weight of authority and founded in better reason, is that where there is any ambiguity in the language the words may be construed in the reasonable sense in which the hearers or readers actually understood them, and to that end the testimony of the hearers or readers is received, together with evidence of all the surrounding circumstances.

The meaning actually intended by the author is immaterial upon the question of liability, except so far as he may have made it apparent at the time. If his

ambiguous language is intended harmlessly, but is reasonably understood in an injurious sense, he is responsible. And if the language is not defamatory and is not so taken, there is no injury, although the author desires and intends there should be.

§ 91. Certainty. The rule of law is that there is no liability unless there is certainty, (1) as to the person charged, (2) as to the imputation made. The reference must be to some ascertained or ascertainable person, who must, of course, be the plaintiff. The person may be ascertained either from the language itself or from the surrounding circumstances which give peculiar point to the language. So, where the reference is to a class of individuals and not to any member, the circumstances may be such that the jury can determine which was meant. But to merely charge as to two witnesses who have testified contradictorily, "one of you two has committed perjury," is not actionable, for it is not and can not be certainly applied to either.

The imputation made must be certain, or capable of being made certain. The words need not, however, be technically exact as a description of the charge. Any words that distinctly assume guilt in the party charged are sufficient. But it is not essential that the words be affirmative. They may be actionable where the form of the language is interrogative; and it is conceivable that a statement in the negative may be so worded or emphasized as to convey the meaning of an affirmative charge. In determining whether an imputation is certain, it is proper to consider not only the words, but all the surrounding circumstances that may give especial force to language used.

§ 92. Malice.-By most law writers and by the