Gillan v. State Journal Printing Co.

NewMAN, J. In every legal cause of action for tort are two elements, — the injury, and the damages which flow from it. The injury is the unlawful act; the damages are the scale or measure of the recovery. Both elements must -concur to give a right of action. The injury alone, without damage, does not give it; nor damages alone, without the injury. So, in order that it shall state a cause of action, the complaint must state facts which show, not only an injurious publication, but that the plaintiff has suffered damages from it. The law infers damages from the publication of language such as necessarily or presumably occasions damage. It is said, also, to infer damages from such language as “ directly tends to the prejudice of any one in his office, profession, or trade.” Gottbehuet v. Hubachek, 36 Wis. 515; Singer v. Bender, 64 Wis. 169. Such language is actionable without allegation or proof of damages. And a complaint which sufficiently alleges the publication of such language need not allege damages, for such will be presumed. But, in other cases, special damages, such as do not necessarily or probably flow from the publication of the language complained of, are essential to be alleged. Without such allegation no cause of action is stated. In order that language published concerning one in a special character or relation shall be actionableyw se, and without the allegation of special damages, it “ must touch him ” in that particular character or relation. It must be published of him in his official or business character. Town465 shend, Slander & L. (4th ed.), §190; Odgers, Libel & S. (1st Am. ed.), 65; Kinney v. Nash, 3 N. Y. 177; Purdy v. Rochester Printing Co. 96 N. Y. 372. But when the publication conveys only a general imputation upon the plaintiff’s character, which would be similarly injurious to any one of whom it might have been published, it is not actionable, unless applied by the publication itself to the profession or occupation of the plaintiff. Sanderson v. Caldwell, 45 N. Y. 398; Moore v. Francis, 121 N. Y. 199. So, it has been held not actionable to say of a justice of the peace, “ Squire Oakley is a damned rogue; ” or of a physician that he has committed adultery; or of the keeper of a restaurant, “You are an infernal rogue and swindler;” or of an attorney, “He has defrauded his creditors, and has been horsewhipped off the course at Doncaster.” This point is amply illustrated by citations in the text books above referred to, and does not need further illustration. The question then seems to be resolved into this: Did the publication complained of touch the plaintiff in his profession or occupation? While it does directly charge some things which the plaintiff might well resent and wish to •deny, it certainly contains no words of defamation, nor any which reflect upon the occupation of the plaintiff or the manner in which it is conducted. It does not even mention his teachers’ agency or newspaper, except by way of description of his person. There are no words which touch him in his occupation. It is alleged that the plaintiff and President Harvey “ have had their heads together,” and that the plaintiff “ has repeatedly written high school teach•ers asking them to launch attacks upon the university.” It is not quite clear what was intended by these imputations. They are equivocal. But it is clear that they do not convey ■a charge of moral turpitude, and that they have no relation to the plaintiff in his occupation, either as a teacher, or as a conductor of institutes, or as the conductor of a teachers’ [466] agency, or as the manager of an educational newspaper. They seem to imply criticism on conduct which has no necessary or natural connection with either. The reputed conduct would be equally reprehensible in any other. It impeaches neither his shill nor ability nor his conduct in his occupation. It relates altogether to matters outside of his. business. It is impossible to say that there is any very persuasive-presumption that this publication either has worked or will work the plaintiff an injury. That seems to depend, in large measure, on which was the stronger or more, popular side of the controversy mentioned in the complaint. If the plaintiff’s actions met the approbation of the more popular side, non constat that the publication would not inure to his. advantage, both financially and socially. The complaint is silent upon this point. Such damages as might or might, not result are too remote and contingent to afford'a basis, for a satisfactory presumption. It is considered that the publication will not support an action, unless special damages are proved. None having-been alleged, the complaint does not state a cause of action. By the Court.— The order of the circuit court is reversed,, and the cause is remanded for further proceedings according to law.