Cooke v. Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367; 1 Jur. N. S. 610; 3 C. L. R. 1090. So where the defendant inserts in a newspaper an advertisement defamatory of the plaintiff; if such advertisement be necessary to protect the defendant's interest, or if advertising was the only way of effecting the defendant's object, and such object is a legal one, then the circumstances excuse the extensive publication. But if it was not necessary to advertise at all, or if the defendant's object could have been equally well effected by an advertisement which did not contain the words defamatory of the plaintiff, then the extent given to the announcement is evidence of malice to go to the jury. Brown v. Croome, 2 Stark. 297. Lay v. Lawson, 4 A. & E. 795; overruling Delany v. Jones, 4 Esp. 191. Gassett v. Gilbert and others, 6 Gray (72 Mass.), 94, ante, p. 274. The plaintiff left the defendant's employ and set up business on his own account in premises adjoining the defendant's. Thereupon the defendant sent to certain customers whom the plaintiff had introduced to him, a postcard to the following effect: "I beg to inform you that in consequence of the unsatisfactory manner in which the late drayman, Smith, performed his duties, he is no longer in my employ, neither has he any authority to receive money on my behalf." Held, that the postcard would have been equally efficacious to protect the interests of the defendant without the words in italics; that the insertion of these libellous words was unnecessary and malicious. Verdict for the plaintiff for 101. damages. Smith v. Crocker, (1889) 5 Times L. R. 441. 7. Privileged Reports. In all these cases, whether under the Law of Libel Amendment Act, 1888, or at common law, the privilege can be destroyed by proof of malice in the defendant. It is not enough, if the proprietor of the paper be sued, to prove malice in the editor or the reporter; malice must be shown in the defendant himself. (Robertson v. Wylde, 2 Moo. & Rob. 101; Clark v. Newsam, 1 Exch. 131, 139.) And, indeed, whenever the report has been written by the ordinary reporter on the staff of the newspaper it is difficult to prove any malice. If, however, the report was written by a successful litigant or his solicitor, or by the speaker at a meeting, the jury will be more ready to conclude that the act was malicious. Though it must always be remembered that " a newspaper has no greater privilege in such a matter than any ordinary person; any person is privileged in publishing such a report, if he does so merely to inform the public." (Per Hannen, J., in Salmon v. Isaac, 20 L. T. at p. 886; and see 5 Ex. D. 56; and (1886) 3 Times L. R. 245.) In Stevens v. Sampson, Bramwell, B., said (5 Ex. D. at p. 56): "Suppose a reporter for the press bore malice towards a person, a party to an action, and published a fair report of the proceedings injurious to him, I incline to think that, as he would be performing a kind of duty, it ought to be taken that he is acting under privilege. However, I only throw this out as a suggestion, and it is unnecessary to decide the point." Surely, however, if the action were brought against the reporter himself, he would be liable, because he acted maliciously. In an action against the editor or the proprietor, the malice of the reporter would be immaterial; the plaintiff would have to prove malice in the actual defendant. See ante, p. 322. Illustrations. Even though a report of judicial proceedings be correct and accurate, still if it be published from a malicious motive, whether by a newspaper reporter or any one else, the privilege is lost. Stevens v. Sampson, 5 Ex. D. 53; 49 L. J. Q. B. 120; 28 W. R. 87 ; 41 L. T. 782. Plaintiff brought an action against defendant, and applied for an injunction. Defendant applied at the same time for a receiver, which was refused. Thereupon the defendant said that he would "make it d-d hot for Dodson," and inserted in a newspaper he owned a report of the application, setting out all his own counsel had said against plaintiff's solvency, &c., at full length, but omitting all mention of plaintiff's affidavit. Held, ample evidence of malice. Damages 2501. Dodson v. Owen, (1885) 2 Times L. R. 111. A speech made by a member of Parliament in the House is absolutely privileged; but if he subsequently causes his speech to be printed, and published, with the malicious intention of injuring the plaintiff, he will be liable both civilly and criminally. R. v. Lord Abingdon, 1 Esp. 226. R. v. Creevey, 1 M. & S. 273. As to malice in actions on the case for untrue words causing damage, see ante, pp. 73, 89. CHAPTER XIII. DAMAGES. DAMAGES are of two kinds : (i) General. (ii) Special. General Damages are such as the law will presume to be the natural or probable consequences of the defendant's words; they need not therefore be proved by evidence. Special Damages are such as the law will not infer from the nature of the words themselves; they must therefore be specially claimed on the pleadings, and evidence of them must be given at the trial. Such damages depend upon the special circumstances of the case, upon the defendant's position, upon the conduct of third persons, &c. In some cases special damage is a necessary element in the cause of action. When on the face of them the words used by the defendant clearly must have injured the plaintiff's reputation, they are said to be actionable per se; and the plaintiff may recover a verdict for a substantial amount, without giving any evidence of actual pecuniary loss. But where the words are not on the face of them such as the Courts will presume to be necessarily prejudicial to the plaintiff's reputation, there evidence must be given to show that in fact some appreciable injury has in this case followed from their use; if no such evidence be forthcoming the judge will stop the case. The injury to the plaintiff's reputation is the gist of the action; he has to show that his character has suffered through the defendant's false assertions and where there is no presumption in the plaintiff's favour, he can only show this by giving evidence of some special damage. It will be convenient to divide this chapter into the following heads: I.-General Damages. II.-Special Damage, where the words are not actionable per se. III.-Special Damage, where the words are actionable per se. IV. Evidence for the plaintiff in aggravation of damages. V. Evidence for the defendant in mitigation of damages: (i) Evidence falling short of a justification. (ii) Previous publication by others. (iii) Liability of others. (iv) Absence of malice. (v) Plaintiff's bad character. (vi) Absence of special damage. (vii) Apology and amends. VI.-Remoteness of damages. I. GENERAL DAMAGES. General Damages are such as the law will presume to be the natural or probable consequence of the defendant's conduct. They arise by inference of law; and need not therefore be proved by evidence. Such damages may be recovered wherever the immediate tendency of the words is to impair the plaintiff's reputation, although no actual pecuniary loss has in fact resulted. Such general damages will only be presumed where the words are actionable per se. If any special damage has also been suffered, it should be set out on the pleadings; but, should the plaintiff fail in proving it at the trial, he may still recover general damages. (Cook v. Field, 3 Esp. 133; Smith v. Thomas, 2 Bing. N. C. 372, 380; 2 Scott, 546; 4 Dowl. 333; 1 Hodges, 353; Brown v. Smith, 13 C. B. 596; 22 L. J. C. P. 151; 17 Jur. 807; 1 C. L. R. 4.) The jury should carefully consider the whole of the words complained of, and give the plaintiff such damages as in their opinion will fairly compensate him for the injury done to his reputation thereby. The amount of damages is "peculiarly the province of the jury." (Davis & Sons v. Shepstone, 11 App. Cas. at p. 191; 55 L. T. at p. 2.) The Court of Appeal will not disturb the verdict, unless it be such as reasonable men could not have properly found. (Webster v. Friedeberg, 17 Q. B. D. 736; 55 L. J. Q. B. 403; Metropolitan Railway Co. v. Wright, 11 App. Cas. 152, 154, 156; Praed v. Graham, 24 Q. B. D. 53; 59 L. J. Q. B. 230 ; 38 W. R. 103.) The jury will of course be influenced by the circumstances attending the publication, by the character of the defamatory words, by their falseness, by the malice displayed by the defendant, or the provocation given by the plaintiff. They may also fairly take into their consideration the rank and position in society of the parties, the mode of publication selected, the extent and long continuance of the circulation given to the defamatory words, the tardiness, or inadequacy, or entire absence, of any apology, the fact that the defendant could have easily ascertained that the charge he made was false, &c. Where the words affect a trader in the way of his trade, figures may be laid before the jury, showing that his business has fallen off in consequence. (Harrison v. Pearce, 1 F. & F. 569; Evans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31; Ingram v. Lawson, 9 C. & P. 326; 6 Bing. N. C. 212.) Even if no evidence be offered by the plaintiff as to damages, the jury are in no way bound to give nominal damages only; they may read the libel and give such substantial damages as will compensate the plaintiff for such defamation. (Tripp v. Thomas, 3 B. & C. 427.) The damages which the jury award a plaintiff may be either, (i) contemptuous, (ii) nominal, (iii) substantial, or (iv) vindictive. |