business to know, and mere want of knowledge constitutes no defense."

Sec. 401-46. SAME SUBJECT -WORDS ACTIONABLE PER SE.-CLASSIFICATION

OF SLANDEROUS WORDS.-The publication of certain things are actionable without proof of injury, since their very utterance is calculated to be injurious to the party to whom they are ascribed, such publications are said to be actionable per se, or by themselves. But in Louisiana the distinction between words actionable and those actionable only where special damage is alleged, is rejected, and only the actual damage proved can be recovered in either case.2

per se

In a leading case in the Supreme Court of the United States, Mr. Justice Clifford thus classifies words falsely spoken, which will give rise to a cause of action: "1. Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where if the charge is true, it would exclude the party from society. 3. Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an officer or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment.

1 Smith v. Utley, 92 Wis. 133, 35 L. R. A. 620.

2 Tarleton v. Lagarde, 46 La. Ann. 1368. See also, Dufresne v. Weise, 46 Wis. 290; Trimble v. Tautlinger, 104 Ia. 665.

4. Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. 5. Defamatory words falsely spoken of a person which, though not in themselves actionable, occasion the party special damage." Thus there are four classes of words actionable per se, or in themselves, and one, the fifth class, which become actionable on the averment and proof of special damage to the party complainant.3

The test of the actionability of words imputing a criminal offense is said to be: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable." So if the offense charged is not indictable, it cannot generally, constitute slander per se.5 The accusation of intent to commit a crime, where it is not charged as having been committed, is not actionable. "If the words convey the imputation of crime,

3 Pollard v. Lyon, 91 U. S. 225, 226.

4 Brooker v. Coffin, 5 Johns. 188. See, Kelley v. Flaherty, 16 R. I. 234.

5 Lodge v. O'Toole, 20 R. I. 405; Brooker v. Coffin, supra; Castleberry v. Kelly, 26 Ga. 606, in these cases the imputation of unchastity to a female is held not to be actionable per se. But in other cases the contrary is held: Rutherford v. Paddock, 180 Mass. 289; Barnett v. Ward, 36 Ohio St. 107; Cushing v. Hederman, 117 Ia. 637.

6 Fanning v. Chase, 17 R. I. 388, where the charge was "he is going to start a house of ill fame," and the court said, "To defame another by language, is to harm or destroy his good fame or reputation, or to disgrace or calumniate him. In order to have this evil effect, however, it is evident that the language used

they are actionable in whatever mode their meaning may be expressed; they may be by way of insinuation, interrogation, by ironical praise, or by any form of speech understood by the hearers."

As to words imputing a contagious or infectious disease, it is said that while the limitations are not certain, the list is probably limited to venereal diseases, such as are brought upon one by disreputable practices. A charge that one had consumption would not be within the rule.8

Words are actionable per se as damaging one in respect to his profession, which charge him with ignorance or incompetency, dishonesty, or general unfitness by reason of a charge of conduct unbecoming the particular following in which he is engaged. Thus to call a clergyman an "unscrupulous liar," a physician a "quack," or imputing to an officer dishonesty or corruption in his office." "It is not enough that the language disparages him generally, or, that his general reputation is thereby

concerning him must relate to his conduct or character as they now are, or have been in the past, and not be the mere opinion of the speaker, as to what they will be at some indefinite period in the future."

7 Haines v. Campbell, 74 Md. 158.

8 Irons v. Field, 9 R. I. 216; Kaucher v. Blinn, 29 Ohio St. 62; Rade v. Press Pub. Co., 37 Miss. 254, 75 N. Y. S. 298.

9 Ayre v. Craven, 2 Ad. & El. 7; Mains v. Whiting, 87 Mich. 172; Wallace v. Jameson, 179 Pa. St. 98; Monson v. Lathrop, 96 Wis. 386; Thibault v. Sessions, 101 Mich. 279; Hartford v. State, 96 Ind. 461; Hagan v. Purdy, 93 Ky. 424 Elmergreen v. Horn, 115 Wis. 386; Jarman v. Rea, 137 Cal. 339.

affected, or that the words used tend to injure him in his

As to words which tend to injure one in his business, to be actionable per se they must refer to the business in which the party is engaged, and proximately tend to injure or prejudice such calling. Thus a statement which would impugn the credit or solvency of a merchant, would be injurious, while the same statement as to one not using his credit, or needing financial responsibility, might not be injurious. While one manufacturer or merchant may advertise his own wares as superior to the wares of others, and though this may be untrue, yet he is not liable, as this is a sort of license to the mercantile trade.' But generally, a false and defamatory statement as to one in his trade or calling is actionable per se, without proof of special damage sustained. The imputation of insanity, or dishonesty, and incapacity, in respect to one's calling have been held actionable per se.3 So a false statement that one was discharged for reprehensible conduct, and a false blacklisting of a person as one who does not pay his debts, is actionable.*

10 Divens v. Meredith, 147 Ind. 693, 696. See also, Wofford v. Meeks, 129 Ala. 349, 55 L. R. A. 214.

1 Hubbuck & Sons v. Wilkinson, 1 Q. B. 86; Boynton v. Remington, 3 Allen, 397.

2 Moore v. Francis, 121 N. Y. 199; Lovejoy v. Whitcomb, 174 Mass. 586; Price v. Conway, 134 Pa. St. 340; Hankel v. Schaub, 94 Mich. 542.

3 Moore v. Francis, supra: Holmes v. Jones, 121 N. Y. 461; Gaither v. Adv. Co., 102 Ala. 458.

* Tonini v. Cevasco, 114 Cal. 266; W. U. Tel. Co. v. Pritchett, 108 Ga. 411.

When the words charged are not actionable in themselves, the plaintiff must aver the special circumstances causing the damage, as where the imputation of unchastity in a female, is held not to be actionable per se, she may show that by reason thereof she lost a favorable marriage, or other position, and thereby suffered special damage, and is then entitled to redress. A general claim of damage is not enough, but the charge should be made specifically and in connection with the facts causing it.

Sec. 401-47. SAME SUBJECT-LIBEL DISTINGUISHED FROM SLANDER, AND CLASSIFICATION OF LIBELLOUS CHARGES.In addition to being propagated by printing, pictures, and the like, instead of orally, a libellous charge is said to differ from slander in that the former may arise from the use of matter which would not constitute slander if spoken orally. The reason being that the printed charge is believed to be more far reaching and effective than oral declarations, and implies deliberation and forethought, while mere spoken words are not so open to the implication of settled malice. Hence there are many charges that will be held to be libellous, that would not constitute slander."

5

Libel may be classified as: 1. Such false and defam

Shepherd v. Wakeman, 1 Sid. 79; Underhill v. Welton, 32 Vt. 40.

6 Waters v. Retail Clerks Union, 120 Ga. 424; Bush v. McMann, 12 Col. App. 504; Field v. Colson, 93 Ky. 347.

'Herrick v. Tribune Co., 108 Ill. App. 244; Republican Pub. Co. v. Nosman, 15 Col. 399; Moore v. Francis, 121 N. Y. 199; Ukman v. Daily Record Co., 189 Mo. 378.