The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-07-30
Supreme Court of the Hawaiian Islands,
July Term. 1854.
J. L. wArxRuoUsE vs.. J. d. SPR
W. G. IRWIN.
oriuion Of cLief Jretiee Jrdd.


damages resulting to plaintiff for injury done by
the defendants to the character, feelings and rep
utatiou of the plaintiff. The declaration alleges:
l. That for thirty years and upwards the plant
if has carried on and still carries the business
of general merchant, importer and retail store
keeper in the city of Honolulu.
2. That in the year 1864 the plaintiff had certain
disputes and differences with one W. l.. Green, a
merchant then and now residing in Honolulu.
3. That in order to settle and arrange the said
disputes and differences, the plaintiff wrote and
sent letter to the said W, L. Green copy where
of is annexed to the complaint; marked "a"
That by the said letter the plaintiff authorized
Mr. Green, but no other person, to print and cir
culate, should he;so desire, one hundred copies,
but no more of the said letter.
3. That on the 7th day Of June of this year, the
defendants, intending to injure the character,
feelings and reputation of the plaintiff, did, with
out the knowledge or consent of the said w. L.
Green of the plaintiff, wrongfully and injur-
iously print publish and circulate, cause to be
printed, published and circulated, large number,
that is to say several hundred copies of the said
letter, and did wrongfully and injurously cause
the said copies of the said letter to be distributed
and delivered to divers residents of Honolulu and
other persons residing In this Kingdom.
All OF which actions and doings by the defend
ants the plaintiff alleges were done in contraven-
ton of his private rights under the laws, and to
the damage of the plaintiff to the amount claimed.
The defendants demur and say that the COM
plant is insufficient in law and urge particularly
!. That the complaint does not allege that the
letter published is untrue or defamatory.
2 No special damages can be recovered, for none
are alleged to have resulted.
3. General damage cannot be presumed from
publishing the truth. The truth is a complete
and perfect answer to n civil suit for libel.
Townsend on Libel; p. Pill.
Odgers on Libel, p. 1863.
4. The plaintiff cannot recover nominal dam
ages, for he has no property in the letter. 1t is
Mr.. Green, the receivers property. The letter has
mn & had haaT 10,
the world by the writer and he has not secured its
copyright.
8. The letter is part of judicial proceeding
in the case of Green VS.. Waterhouse and no action
is maintainable for such publication.
6. The complaint contains no allegation of in
jury 10 plaintiff business.
The publication may have been "oficious, inter-
meddling and annoying" but these elements will
not support an action. Nor if published, with in
tent to iniure.
Il. The truth is justification in libel though
the motive be malicious.
Against these views the plaintiffs counsel urge:
l. In this case 1t is clear that the words of the
letter we're of and concerning the plaintiff person.
ally in his business; and also that the publication
directly tends TO injure the fame, reputation and
good name of the plaintiff within the statutory
definition of libel.
But the falseness of the letter is not to be
averred and therefore it is possible that the pres
emit case cannot be classified technically as an &C
ton for libel. But il comes within all the evils
contains all the legal ingredients of tort and is
not ddHHHm dbSgHe iijHTia.
.. The declaration conforms to our statutory
form. 1t AYERS an intent to do the injury and an
unauthorized act done whereby injury has result
ed to the plaintiff character reputation and feel
ings, and the act is which tends TO injure the
plaintiffs business.
3. The truth of the publication is not always
defense in a civil action.
1. Even Mr.. Green would be liable for publish
ing over one hundred copies. But it does not ap-
pear that he published any. Defendants publ
cation of the letter for a malevolent purpose was
more than ofhcious intermeddling with private
affairs, il was a tort.
). The receiver of a letter cannot publish it with
out leave of the sender An injunction would is
sue to restrain such wrongful act. The amount
Of damage for the wrong committed Is immaterial
in this discussion.
6. The old theory for the necessity of averring
special damages was that they were required to be
ayerred when not presumed in order to prevent
surprise to the defendant But as proof of dam
age where the words published are defamatory
and actionable per would be no less a surprise,
it shows that the theory is not based on principle
and ought not to be adopted.
Z. A publication may be true and yet be libel.
10 rake up buried feud, to spread before the
community statement which was made by one
Of the parties to that feud for the sole purpose of
ending it, and to do so for the malicious purpose
of iniuring such person, and more especially when
such publication necessarily tends TO affect injur
iousy his business, reputation and feelings, is a
wrong, and it would be a reproach to a system
of law based solely on right reason to say of such
malicious injury that it has no remedy unless its
effect can be shown to have been to wiring dollars
out of the plaintiff.
8. Equity will restrain the unauthorized publ
cation of private letters on the ground of violation
of confidence and injury TO the feelings.
Cooley on Torts, pages 356 9.
Kerr, mi, pages 1879.
Pomeroy' Eq. JUS, Sec. 1858.
2Story's Eq. JUS, Secs 9i6 and 9lS
by THE COURT.
The first question to be decided is, whether this
complaint is to be judged according to well settled
rules concerning civil actions for libel. If il is,
then it is clear that the demurrer must be sus-
tanned; for the complaint does not aver that the
words in the publication are defamatory. More
over they are not alleged to DO false. A libel ac-
cording to statutes, is publication in writing
PRINT or by picture, statue sign or representation
other than by words merely spoken, which direct
ly tend to iniure the fame, reputation or good
name OF another person, and TO bring him into
disgrace, adherence, odium, hatred, contempt or
ridicue, or cause him to be excluded from society,""
II has been settled by long course of legal de-
cisions that defamatory words are those which
produce any perceptible injury 10 the reputation
of another. These, if false, are actionable, and
general damages may be recovered of the person
using them, without proof that any particular
damage has followed their use.
1t is also settled that the fact that the words
employed by the defendant have perceptibly in
iured the plaintiffs reputation may be presumed
from the nature of the words themselves. Also
II tho words, being written and published or
printed and published, are i'll any way disparagng
TO the plaintiff and tend to bring him into ridicule
or contempt.
As above stated, the publication complained of
is not alleged to be defamatory. 1t is therefore
unnecessary to consider whether il has i'll factthat
character. For this reason alone the plaintiff can
not recover general damages on his complaint, as
for libel Nor can tho plaintiff recover special
damages, as Tor libel, for he has failed to aver
Al.
pleader in a libel suit.
deem it unnecessary TO discuss the question
whether or not, considering statute, the truth
Of the ublished matter is a complete defense to
civil action, for the complaint Dies not charge the
matter published to be false and it purporting to
be copy of letter written by the plaintiff him
self could not well be alleged TO be false.
pass now to consider whether the plaintiff has
cause of action III his case stated in the COM
plant, independently of the law governing libes.
This is a novel question and may be thus stated:
letter was written by a merchant in Honolulu
twenty years ago as an apology and in order to
settle and compromise a suit for Islander. The
letter was written to person not the defendant,
and closes with the statement 81 beg to enclose
herewith check for $500 in your favor to pay the
expenses you have already been put to in the suit
against me, and also to pay for 100 printed comics
of the apology should you desire to print the same,
IN order that you may have opportunity, by
circulating them, of repairing any injury you may
have suffered by what have said or DONE" Per
mission was thus accorded by the writer TO the
receiver of the letter to print 100 copies of the
letter and TO circulate them, presumably among
those who might have been unfavorably affected
towardsthe receiver by the plaintiff s statements.
The complaint charges that the publication of
this letter by the defendants was with the intent
TO iniure the character feelings and reputation of
the plaintiff, and that 1t was done without the
knowledge or consent of the receiver, Mr.. W. l..
Green, or.of the plaintiff, and that the defendants
wrongfully and iniuriously printed and circulated
large number that is to say several hundred
copies, and delivered and distributed them to
divers residents in Honolulu and other persons
residing in this Kingdom
In considering whether the plaintiff can recover
damages for this conduct of the defendants, these
allegations must be taken as true
Judge Story discusses the question as to whether
courts of equity ought to restrain by injunction
the publication of mere private letters on business
or on family concerns, or on matters of personal
friendship and not strictly falling within the line
OF literary compositions Story Eq. Jur. Secs. 9i6
1873.
This learned jurist says, Sec. 946: "In moral
view, the publication of such letters, unless in
cases where 1t is necessary TO the proper yindica
ton of the rights conduct of the party against
unjust claims or injurious imputatons, is perhaps
one of the most odious breaches of private cores
pondence, of social duty, and of honorable feelings
which can we'll be imagined. 1t strikes at the root
OF all that free and mutual in serchanGe of advice
opinions and sentiments between relatives and
friends and correspondents which is so essential
70 the well-being of society and to the spirit of
liberal courtesy and refinement. 1t may involve
whole families in great distress from the public
reposed in the bosoms of Others under the deepest
and most affecting confidenca that they should for