[*202] *4. To bring a case within the fourth class mentioned, the imputation must be such as is calculated to affect the party prejudicially in the business in which he is engaged. Therefore, a false charge that in respect to one person might be slanderous, if made in respect to another would support no action. The reason would be that in the one case it would be almost certainly injurious, while in the other no presumption of injury would arise. Thus, if it be said of a day laborer, "He is a bankrupt," the remark, so far as his business is concerned, is perfectly harmless, while if the same remark were made of a merchant, or of any one to whose business a good financial credit was indispensable, the natural and probable tendency would be to inflict an injury which would be serious and might be disastrous. The merchant is therefore slandered when his pecuniary credit is impugned; the day laborer is not. shall, 24 Eng. L. & E. 463; Chaddock v. Briggs, 13 Mass. 248. The following are further illustrations: Charge that the postmaster would rob the mail: Craig v. Brown, 5 Black f. 44; charge that the chief engineer of the fire department was drunk at a fire; Gottbehuet v. Hubachek, 36 Wis. 515; statement of a justice of the peace, in connection with his office, that he is a rascal, villain and liar; King v. Chaundler, 2 Raym. 1363. And, see, Lindsey v. Smith, 7 Johns. 359; Gove v. Blethen, 21 Minn. 80. But the rule does not apply if at the time the words were spoken the party had ceased to hold the office. Gibbs v. Prices, Styles, 231; Collins v. Mellen, Cro. Car. 282; Bellamy v. Burch, 16 M. & W. 590; Forward v. Adams, 7 Wend. 204; Edwards v. Howell, 10 Ired. 211; Allen . Hillman, 12 Pick. 101. So to assail the character or integrity of a judge. Robbins v. Treadway, 2 J. J. Marsh, 540; Hook v. Hackney, 16 S. & R. 385. Or of a justice of the peace. Oram v. Franklin, 5 Black f. 42. Spiering v. Andrae, 45 Wis. 330. Or of a circuit court commissioner. Lan sing. Carpenter, 9 Wis. 540. To charge a certificated master mariner with drunkenness while in command of his vessel at sea, was held actionable in Irwin v. Brandwood,2 Hurl. & Colt. 960. So to charge a clergyman with incontinence. Gallwey v. Marshall, 9 Exch. 294. Or with misappropriating collections and being unfit to be a minister. Franklin ». Browne, 67 Ga. 272. Or a school superintendent with official corruption, (Here a libel). Hartford v. State 96 Ind. 461; see Larrabee v. Minn. Tribune Co. 36 Minn. 141. Or the architect of a public building with mental unsoundness. Clifford . Cochrane, 10 Ill. App. 570. Or a temperance organizer with being a seducer and hypocrite. Finch . Vifquain, 11 Neb. 280. The rules which protect persons against slanders in their business are nevertheless applicable to all kinds and all-grades of business; to the day laborer and the servant as much as to the banker, the broker or the merchant.' And while men engaged in rival business may puff their own wares, and [*203] will be excused for any extravagance of statement, so long as they do not unjustly assail the business of their rivals, yet they have no more liberty in making unfounded and injurious imputations against rivals to the prejudice of their business than they have upon other persons, but must keep within the same limits of truth and fairness." Penn. St. 62; Burtch o. Nickerson, 17 Johns. 217; Fitzgerald v. Redfield, 51 Barb. 484; Orr v. Skofield, 56 Me. 483; Fowles v. Bowen, 30 N. Y. 20. It is not actionable to say of a dealer that his goods are bad or inferior to those dealt in by another, where no deceit or wrong is imputed to him. Boyntone. Shaw,&c., Co., 15 N. E. Rep. 507 (Mass.); Tobias. Harland, 4 Wend. 537. Otherwise to charge a tradesman in print with counterfeiting genuine articles and their trademarks. Steketee v. Kimm, 48 Mich. 822. To say of a hotel keeper that "he kept no accommodations, and that one could not get a decent meal or bed if he tried," is slanderous per se. Trimmer v. Hiscock, 27 Hun, 364. So to charge a butcher with selling veal taken from an unborn calf. Singer v. Bender, 64 Wis. 169. But derogatory words as to quality of articles furnished by a caterer are not. Dooling v. Budget Pub. Co., 144 Mass. 258. In Riding v. Smith, 1 Exch. Div. 91; S. C. 16 Moak, 547, an action by a trader was sustained for words charging his wife, who was his assistant in business, with having committed adultery on the premises, special damage being proved. POLLOCK, B.: "The courts have at all times been extremely careful as to verbal slander; but where you find that the nature of the words is such that damages would naturally follow from their being uttered, and that damage has arisen, then there is a cause of action. * * The words were spoken on a public occasion, when the clergyman was about to read himself in, in order that he might become the incumbent of the parish, and the defendant, in the presence of four persons at least, uttered the words with regard to his conduct with the wife of the plaintiff." 1 Terry v. Hooper, 1 Lev. 115. Any charge of dishonesty, spoken of one in connection with his business, whereby his character in such business may be injuriously affected, is actionable. Orr v. Skofield, 56 Me. 483; Backus v. Richardson, 5 Johns. 476; Noeninger v. Vogt, 88 Mo. 589. 2 Young v. Macro, 32 L. J. Q. B. 6, S. C. 3 Best & Smith, 264, was a case where a mineral oil merchant published a chemist's report which reflected unfavorably upon the oil sold by a rival merchant. It was held that the action would not lie, provided the report was the result of a bona fide analysis of the oils, and contained nothing known to the defendant as false at the time of publication, In Boynton . Remington, 3 Allen, 397, it was held no libel upon 5. Words Not Actionable per se. The fifth class of cases embraces all those in which the untruthful statement is not deemed in law to be necessarily of a damaging character, but which can be and is shown to have been damaging in the particular case, by reason of special circumstances which are set out in the decla ration. Thus, if one say of another, "He is a rogue," the law will not imply a resulting injury; but if it be shown that in con sequence of the imputation he was discharged from [*204] *an employment, or was refused employment, the special injury is thus made to appear. So, although to say of a female that she is unchaste is generally held not actionable where unchastity is not made a punishable crime, yet if the woman can show that because of the imputation she lost a contemplated marriage, or suffered in any manner a pecuniary loss, she is entitled to legal redress. It is not thought necessary to attempt any enumeration a dealer in coal, in L, who had advertised genuine Franklin coal for sale, to publish the following advertisement: "Caution: The subscribers, the only shippers of the true and original Franklin coal, notice that other coal dealers in L. than our agent J. S., advertise Franklin coal. We take this method of cautioning the public against buying of other parties than J. S., if they hope to get the genuine article, as we have neither sold nor shipped any Franklin coal to any party in L. except our agent, J. S." Of this BIGELOW, C. J., says: "This was within the privilege of fair dealing, and cannot be tortured into a disparagement of the plaintiff's character." But in Harman v. Delaney, 2 Sta. 898, it was held actionable to indulge in general reflections upon the character of a party and his conduct of his business. So in Weiss . Whittemore, 28 Mich. 266, it was held actionable per se to publish of an agent for the Steinway pianos, but who had formerly been agent for both that and the Knabe pianos, that he had in every instance while holding such double agency, recommended the Knabe piano as the best, and advised his customers to buy that, as being superior in every respect to the other. See, also, Western Counties Manure Co. v. Lawes, &c., Co., L. R. 9 Exch. 218; S. C. 10 Moak, 391. It is a species of slander of credit for a banker to refuse to honor the check of his customer who has money on deposit subject to call, and an action may be maintained for the refusal. Marzetti v. Williams, 1 B & Ad. 415; Rolin . Steward, 14 C. B. 595. Oakley Farrington, 1 Johns. Cas. 129. So where the terms "cheat and swindler" are used. Odiorne ⚫. Bacon, 6 Cush. 185. If words are not slanderous per se, plaintiff must show what they were intended and understood to mean, and the testimony of the hearers as to how they understood them is admissible. Nidever v. Hall, 67 Cal. 79. 2 Shepherd v. Wakeman, 1 Sid. 79; Reston v. Promfeict, Cro. Eliz. 639; Davis v. Gardiner, 4 Co. 16; Davies . Solomon, L. R. 7 Q. B. 112; Moody of the cases in which such actions are sustained, as it could be to little purpose in illustrating a doctrine so general. The injury must be pecuniary in its nature, but it is immaterial whether it be great or small, except as the amount of the recovery will depend upon it.' LIBEL. Compared with Slander. The difference between slander and libel is sometimes said to be this: the one is oral defamation and the other is defamation propagated by printing, pictures, or other means open to the sight. There is, however, a difference in the substance of what shall constitute an actionable charge. It is perfectly reasonable to allow greater liberty of vocal speech than of writing or printing, for two very plain reasons: 1. Vocal utterance does not imply the same degree of deliberation; it is more likely to be the expression of momentary passion or excitement, and is not so open to the implication of settled malice. Therefore, if one shall say of his neighbor, "He is a rascal," there is no very strong probability that the expression will be received by by-standers as anything more than a mere vituperative epithet, indicative of the feelings of the utterer, rather than of his convictions. Therefore to such oral *expressions little importance is generally attached. On [*205] the other hand the same words deliberately written or printed and afterward placed before the public, usually justify an inference that they are the expression of settled conviction, and they affect the public mind accordingly. . Baker, 5 Cowen, 351; Olmstead v. Miller, 1 Wend. 510; Williams v. Hill, 19 Wend. 305; Pettibone v. Simpson, 66 Barb. 492; Underhill v. Welton, 32 Vt. 40. 1 Beach &. Ranney, 2 Hill, 309; Bassila. Elmore. 65 Barb. 627; S. C. 48 N. Y. 561, and the cases cited above. It was once held in New York that mere mental distress, physical illness and inability to labor occasioned by the aspersion, were sufficient special damage to sustain an action. Bradt . Towsley, 13 Wend. 253; Fuller . Fenner, 16 Barb. 333. But these cases are overruled. Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442. It is not a bar to an action for slander that the speaker was drunk when he spoke, nor that he has subsequently apologized. Williams v. McManus, 38 La. Ann. 161. But no action lies for words spoken in the heat of a quarrel brought on by plaintiff if his reputation is not affected by them. Johnston v. Barrett, 36 La. Ann. 320. Partners suing for a libel on the firm cannot recover for individual mental anguish, but for such injury as they have sustained in their joint trade. Donaghue v. Gaffy, 53 Conn. 43. 2. An oral charge is merely heard, and the agency of the wrong-doer in inflicting injury is at an end when the utterance has died upon the ear. But the written or printed charge may pass from hand to hand indefinitely and for many years. It is an ever continuous defamation so long as that by means of which it is communicated remains in existence. These reasons are taken notice of in the law, and some charges are held to be prima facie actionable as libel that are not actionable as oral slander, unless there be averment and proof that actual injury has resulted. In other words, injury is presumed to follow the apparently deliberate act of putting the charge in writing or print, or of suggesting it by means of picture or effigy, where a mere vocal utterance to the same effect might be disregarded as probably harmless. Classification of Libellous Charges. In libel, as in slander, defamatory publications are classified as publications actionable per se, and publications actionable on averment and proof of special damage. In the first class are embraced all cases of publications which would be actionable per se if made orally. These cases, therefore, require no further attention. It also embraces all other cases where the additional gravity imparted to the charge by the publication can fairly be supposed to make it damaging. Thus, to say of a man, "I look upon him as a rascal," is no slander, unless shown to be damaging; but if it be published of him in one of the public journals, the presumption that injury fol lows is reasonable and legitimate. So, to call a man in print "an imp of the devil and cowardly snail," is libellous, though an oral imputation of the sort would be presumably harmless. So, to charge a teacher with falsehood in a report made to the official board, and with general untruthfulness, is libellous per [*206] se. The *general rule is stated thus: Any false and malicious writing published of another is libellous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or Williams. Karnes, 4 Humph. 9; Cropp v. Tilney, 3 Salk, 226; J. Anson v. Stewart, 1 T. R. 748. See Whitney o. Janesville Gazette, 5 Biss. 2 Price v. Whitely, 50 Mo. 439. See Atwill. Mackintosh, 120 Mass. 177; Cary v. Allen, 39 Wis. 481. 'Lindley. Horton, 27 Conn. 58. |