
    CAIN v. THE CHESAPEAKE AND POTOMAC TELEPHONE CO.
    Actions on the Case ; Malice ; Special Damage ; Telephone Service.
    1. Want of precedent affords no valid reason against the maintenance of an action of case.
    2. The declaration in an action of case against a telephone company by a former subscriber alleged that because defendant had arbitrarily changed his call number plaintiff had cancelled his subscription and ordered the telephone to be removed; that defendant refused to remove it and continued for a year to publish plaintiff as a subscriber having the new call number; that plaintiff notified defendant that he had “ plugged ” his telephone and would not respond to calls thereon; that nevertheless during the said year when sundry persons who desired plaintiff’s business services asked to call him, the defendant, after making a feint of calling plaintiff, replied “ He does not answer; ” and that this conduct of defendant had injured plaintiff in his business, in that it induced the persons so calling him to believe that he was inattentive to business, and to so inform other persons, all of which was to plaintiff’s great injury. It was held that the declaration was demurrable in the absence of allegations that the words complained of were maliciously spoken, and that the plaintiff suffered special damage as the natural and proximate consequence thereof.
    No. 289.
    Submitted May 23, 1894.
    Decided June 15, 1894.
    Hearing on an appeal' by the plaintiff from a judgment of the Supreme Court of the District of Columbia, holding a law term, on a demurrer to an amended declaration in an action of case.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This is an action on the case for damages for words spoken injuriously of plaintiff’s business. It comes to us on appeal from a judgment in favor of defendant, The Chesapeake & Potomac Telephone Company, rendered after demurrer to the declaration had been sustained, and plaintiff, Richard S. Cain, had elected not to amend. The case is stated as follows in the brief of counsel for appellant:
    “The plaintiff alleges in his amended declaration that on April i, 1888, he became a subscriber to the defendant’s telephone exchange, in the city of Washington, District of Columbia, and was assigned by the defendant the ‘ call number’ 416-3, by which number he was published and known as such subscriber to said exchange; that this condition continued until July 15, 1891, when the defendant arbitrarily changed said call number to 446-3; that this change was injurious to plaintiff’s interests and was made over his protest; that the plaintiff was unable to induce the defendant to restore his original call number, and that he, on July 31, 1891, cancelled his subscription to said exchange and notified the defendant to remove its telephonic apparatus from his place of business; that the defendant refused to do so, and for the ensuing year published the plaintiff’s name as a subscriber, by trade an undertaker, having the new call number; that the plaintiff notified the defendant that he had ‘ plugged ’ his telephone, so that he could not be called thereon, and that he would not respond to any call thereon; that the defendant during the said year was repeatedly asked to call the plaintiff, by sundry persons desiring his business services, to whom the defendant replied, after making a feint of calling the plaintiff, 1 He does not answer’; that this conduct of the defendant had injured the plaintiff in his business, in that it had the inevitable effect of inducing the persons so calling him to believe that he was inattentive to business, and to so inform other persons, all of which was to the plaintiff’s great injury. This is an abstract of the declaration, and states with sufficient detail the plaintiff’s case.”
    
      Mr. R. Ross Perry for the appellant.
    
      The general question for discussion is this: Does the declaration in. this case state a cause of action?
    Undoubtedly no precedent can be found for this action. It required the invention of the telephone and its practical use to disclose this necessity for the adaptation of old principles to a new state of facts.
    That the common law is elastic enough to permit such adaptations is evident from the following authorities.
    The maxim, “ Boni judiéis est ampliare jurisdictionem,” was thus interpreted by Lord Abinger in Russel v. Smyth, 9 M. & W., 818: “The maxim of the English law is, to amplify its remedies, and, without usurping jurisdiction, apply its rules to the advancement of substantial justice.”
    See also opinion of Mr. Baron Parke in Mirehouse v. Rennell, 8 Bing., 490 (in error in the House of Lords).
    See also Mr. Justice Ashurst’s opinion in Pasley v. Freeman, 3 T. R., 63.
    Finally consider Lord Mansfield’s words in Barwell v. Brooks, 3 Douglass, 373. “ As the usages of society alter, the law must adapt itself to the various situations of mankind.”
    Counsel therefore claim that if a violation of a legal right be shown, and an existing remedy can be adapted to its vindication, such adaptation should be made.
    These questions then recur:
    
      a. What right of the plaintiff has been violated?
    An examination of the declaration will show that the acts complained of are alleged to! have been done concerning the plaintiff in his business relations. It does not need argument to reinforce the statement that such conduct as the declaration charges upon the defendant would naturally tend to injure a business man. That a business man has a right not to be accused of such conduct in his business relations as would naturally tend to injure him in his business is well settled.
    The following cases furnish instances of such accusations as are per se actionable, without proof of special damage: To call a drover a bankrupt, Lewis v. Hawley, 2 Day (Conn.), 497; To call a business man a defrauder, Noen-inger v. Vogt, 88 Mo., 589; To say that an architect engaged to restore a church has no experience in church work, Botterill v. Whytehead, 41 L. T., 588; To say of a brewer that he has been arrested for debt, Jones v. Littler, 7 M. & W., 423; To say of a clerk that he is a notorious liar, Fowles v. Bowen, 30 N. Y., 20; To say of a distiller that he is insolvent, 0strom v. Calkins,Wendell, 263; To say of a hotel keeper that a person could not get a decent bed or meal there (in his hotel) if he tried, Trimmer v. His-cock, 27 Hun., 364; To deprecate the goods of a manufacturer, Snow v. Judson, 38 Barb., 210; Words imputing to a mechanic want of skill or knowledge in his craft, Fitzgerald v. Redfield, 51 Barb., 484; To accuse a schoolmaster of habitual drunkenness, Hume v. Marshall,¡42 J. P., 136; To say that a head fireman was drunk at a, fire, Gottbe-hurt v. Hubachek, 36 Wis., 515. “Any words which, in common acceptance, imply a want of credit or responsibility when spoken of one in his trade or profession are actionable £er se or when they impute to him fraud, want of integrity, or misconduct in the line .of his business or profession.” Am. and Eng. Ency. of Law, Vol. 13, p. 362, and cases quoted.
    Now, in the case at bar the situation disclosed is this: Here are 4000 business men, each having a trade or vocation published with his name and call number, banded together with the defendant for the purpose of having swift communication with each other; the very circumstances imply attention, promptness — in one word, “business.” The defendant by its publication represents to all of them that the plaintiff is an undertaker, that he has a call number 446-3, and that he will promptly answer when called there-b)L Upon call made the defendant goes through the feint of calling plaintiff and then responds: “He does not answer.” Consider the constant repetition of this process. The result must infallibly injure a business man in his reputation for attention to business. Is not that as important to him as honesty, or sobriety, or keeping proper goods?
    
      b. What remedy exists for this violated right? Here we are driven to analogy. Slander will not technically lie, for the wrong consists in more than the mere spoken words. The case of Riding v. Smith, i Ex. D., 91, furnishes the nearest approach to the. desired remedy that counsel have found. There a special action on the case was maintained under circumstances, which would not justify slander asi a technical action. Counsel rely upon that case as affording support for the action in the case at bar.
    
      c. Since the attack upon the plaintiff’s business is actionable per se, no proof of special damage is required, and no names of particular customers lost need be given. Harrison v. Pearce, 1 F. & F., 567; Hartley v. Harring, 8 T. R., 130; Odgers on Libél and Slander, *pp. 66, 79.
    
      d. To require the plaintiff to name the persons who have attempted fruitlessly to call him would be to require something which may not be in his power. Visitors to the defendant’s central office may have heard the number called and have witnessed the dumb show following thereupon and yet not know the name of the caller; other subscribers may have heard over their own telephones the call and its business nature and may not have known the caller’s name. Yet in each case such would be competent witnesses to prove the averments of the declaration. This is not matter of pleading but of proof.
    
      Messrs. Shellabarger & Wilson and Mr. A. A. Hoehling, Jr., for the appellee.
   Mr. Justice Shepard

delivered the opinion of the Court:

This action is peculiar, and confessedly without precedent. This, however, affords no reason why plaintiff should not be permitted to maintain his action if his case can be brought within the operation of any one of the principles of the common law which obtain in cases of injury to person or property.

Plaintiff concedes that for the spoken words set out in the declaration, “slander will not technically lie, for the wrong consists in more than mere spoken words ”; but insists that a special action on the case lies because of the defendant’s wrongful conduct in taking away his telephone number, continuing his subscription against his will, and by the words, “ He does not answer,” spoken to callers, creating the impression that he was neglectful of his business, thereby injuring his trade.

It does not appear from the declaration that plaintiff had any property right or interest in the original call number of the telephone assigned to him at the time of his subscription; nor does it appear that the defendant did not have the right, for its own convenience and advantage, to change said number. There is no fact alleged which tends to show that plaintiff was injuriously affected by said change.

The declaration does not show the terms of the contract of subscription, or what right plaintiff had to cancel the same and order the telephone removed. It may, however, be inferred from a further allegation, that without regard to the right to cancel as exercised by plaintiff, the subscription “had expired” — presumably by its own limitation — • and still defendant treated plaintiff as a subscriber.

Grant that this was' technically a wrong, yet it is not charged to have been done with malice, and is not claimed, of itself, to have worked any damage. The sole injury and ground of damage lies in the iteration and reiteration of the declaration, to continuous callers, that “ He ” (meaning plaintiff) “ does not answer.” Plaintiff contends that these words were inevitably injurious to his business,- wherefore no proof of special damage is required, and no items of special damage sustained, nor names of customers actually lost, need to be alleged.

A modern writer on this subject has said, and We think with accuracy, that: “Language must be either (1) such as necessarily, in fact, or by a presumption of evidence, occasions damage to him of whom, or of whose affairs, it is concerning; or (2) such as does not necessarily, or as a necessary consequence, but does by a natural and proximate consequence, occasion damage to him of whom, or of whose affairs, it; is concerning; or (3) such as neither as a necessary, nor as a natural and proximate consequence occasions damage to him of whom, or of whose affairs, it is concerning. The loss which ensues as a necessary consequence is termed damage; the loss which ensues as a natural and proximate consequence is termed special damage. One and the same set of words may both necessarily occasion damage, and also occasion special damage as a necessary consequence.” Townshend on Libel and Slander, Sec. 146.

This writer further says: “Publication of words of the second class does not per se confer a prima facie right of action and is not per se a prima facie wrong. It confers a right of action only in those cases in which, as a natural and proximate consequence of the publication, loss (special damage) has in fact ensued to him of whom, or of whose affairs, the language was concerning.” Id., Sec. 148.

Commenting on the legal results of these three distinct classes of words spoken of another, the learned author, from whom we. have so liberally quoted, says that words of the first class “import damage”; that of those of the second, the damage must be proved as a fact; whilst those of the third “ cannot in any event confer a right of action.” Id., Sec. 149.

We think it very clear that the words spoken in this instance do not fall within the first of the classes above mentioned. They cannot naturally and necessarily work injury to the plaintiff. It cannot be said within reason that the necessary consequence of the words must have been ' to injure plaintiff in his business generally. They do not “ import damage ” of that kind.

Nor do we think that they can be said to fall properly within the second class, unless, at least, they were uttered in malice,, and of that there is no allegation. Counsel, with commendable frankness, admits that malice could not be proved; hence, properly, it was. not alleged.

While it is not clear that, from any point of view, the words do not belong elsewhere than in the third class, we do not find it necessary to so hold. But we are clearly of the opinion that to maintain the action at all, plaintiff must allege not only that the words were maliciously spoken, but also the particular facts tending to show that he had sustained some special damage as the natural and proximate consequence thereof. This view finds support in a recent well considered English case, which is at the same time authority for the principle claimed by plaintiff to govern his case, namely, that spoken words, though not constituting technical slander, may nevertheless furnish the foundation for special action on the case for damages actually and directly occasioned thereby. Ratcliffe v. Evans, L. R., 1892, 2 Q. B. Div., 524. The facts of that case, as 'well also as the pleading, make it quite different from this. Defendant, the publisher of a newspaper, published a statement that plaintiff, a manufacturer of engines, etc., had retired and closed up his business. The statement was false and was published with the intent to injure plaintiff. Plaintiff was permitted to show damage in a general falling off of his business which could not be accounted for on any other ground than as a result of the publication. The right of action for words spoken, from which actual damage ensues, is clearly maintained in the following language: “That an action will lie for written or oral falsehoods not actionable per se or even defamatory, where they are maliciously published, where they are calculated in the ordinary coursé of things to produce, and where they do produce actual damage, is established law. Such an action is not one of libel or slander, but an action on the case for damage wil-fully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it actual damage must be shown, for it is an action which only lies in respect of such damage as has occurred.” Recognizing the injustice that might be done, in many instances, by confining a plaintiff to proof of the loss of particular custom, etc., in cases of false and malicious publications, the court laid down what seems to us, with some qualification, to be a just and reasonable doctrine, as follows: “In all actions accordingly on the case, where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which the acts are done, must regulate the degree of certainty and particularity with which the damage ought to be stated and proved. As much certainty and particularity must be insisted on, in both pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage' is done.” This must be taken, we think, with the qualification, evidently understood in the same opinion, that the falsehood must have been spoken under circumstances showing an intent to work an injury, and must have been such as, in) the ordinary course of things, to have directly produced the general damage that has in fact occurred.

Riding v. Smith, 1 Exchequer Div., 91 (1876), is strongly relied on by appellant as establishing a principle within the scope of which this case may be brought. Whether the facts of that case itself brought it properly within the same principle, is very much doubted in Ratcliffe v. Evans, supra. Plaintiff was a grocer and draper, and his wife assisted him in carrying on the business. Defendant falsely charged the wife with acts of adultery committed on the business premises. It was held admissible to show a general loss • of custom without giving the names of customers actually lost by reason of the slanderous words. Kelly, C. B., said: “The utterance, concerning another, of words, the natural consequence of uttering which would be to injure the trade and prevent persons from resorting to the place of business, and it so lead to loss of business, is actionable. It is of little consequence whether the wrong is slander, or whether it is a statement of any other nature calculated to prevent persons resorting to the shop of plaintiff.” Pollock, B., said: “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 cause of action.”

The difficulty with this last case, which has caused its soundness to be doubted in the application of the principle enounced to the fact, is that, though the words are defamatory of the wife, and might even “ import damage ” of a nature incidental thereto, it is questionable if they could, under a general allegation of damage to the husband's business, be shown to be the direct and proximate cause thereof. Recognizing the principle controlling that case, without pausing to consider its applicability to the facts thereof, it is sufficient to say that the facts of this case are essentially different. In both Riding v. Smith and Ratcliffe v. Evans, there was wilful falsehood. It was printed in the one and spoken in the other. In the one the words were not defamatory, but it is easy to perceive that the publication was made to injure the plaintiff’s business. It was especially aimed thereat, and could have had no other object. Besides, a marked distinction has generally been made between words spoken merely, and words printed, because of the necessarily more extended circulation of the latter. In the other case, the words spoken made a charge of vile conduct by the wife, committed at the place where she assisted in carrying on1 the business of her husband, which,' if true, might subject her to prosecution, and would necessarily cause her society to be shunned by good people. As she was known to be an assistant in the business, at the very place, too, where the commission of the act was charged, it was thought reasonable and just to hold that the words were actionable by the husband, not in the technical action of slander, but in the special action on the case, because the utterance and circulation of the vile charge were naturally calculated to prevent persons generally from resorting to the shop of plaintiff.

As we have said, the case at bar’presents a very different state of facts. The words, of themselves, considered in the view most favorable to plaintiff’s contention, have no necessary relation to his business. They were not false, though it may be granted they were calculated to create a false impression. They were not spoken in malice, or with intent to injure plaintiff in his business. Malice is an essential ingredient of such an action. If it cannot be reasonably inferred from the nature of the words and the circumstances of their utterance, it must be proved as an independent fact. But had these words been maliciously spoken, it is still difficult to see how they could have affected plaintiff’s business injuriously. Consequently we think it was necessary also to allege facts from which it might appear that actual damage did follow as a direct and proximate result. See Pollard v. Lyon, 91 U. S., 225 ; Wilson v. Dubois, 35 Minn., 471 ; Cook v. Cook, 100 Mass,, 194. _

_ Without denying that, in many instances, the benefit of the uncertainity, as well as the remoteness of the damage done, has been given to the wrongdoer, when, in the interest of justice and with better reason, it might have been given to the injured party, still we think that, in this particular case, the remoteness and uncertainty are so great that it would not be in the interest of justice to make a precedent that might be productive of much harassing litigation without compensating benefit to society.

We are of opinion that the court did not err in sustaining the demurrer, and the judgment will be affirmed, with costs to the appellee ; and it is so ordered.  