The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-01-14
coScrnnNo OPINION or MIR. JUSTICE

CoScURRING OPINION OF MIR. JUSTICE
| M'cULLY.
| In this matter l arrive at the same conclu-
sion with Mr.. Justice Austin that the demurrer
should be sustained, and had written~my Opin-
ion at somewhat greater length than is here
appended. 1t will be unnecessary TO restate
the case a third time.
1t seems very clear that action cannot be
sustained on the complaint in this case as for
a libel, for it is the plaintiffs own letter. The
counsel for the plaintiff comedies this in his
argument before us, although citing Cooley
on Torts p. POS, note for authority that the
truth Of the publication is not always de-
fence in civil cases. We find this note TO be
only an expression Of the learned authors opiu-
ion of what tho law ought to be, against his
statement in the text of what it is. He says
in the note at is questionable whether the law
ought not to hold truthful publications libel
lous in same cases where they relate to mat
tiers that no one has any business to bring be-
| fore the public at all and are made with no
other purpose than to annoy and subject TO
ridicule. Thus it is conceivable that the most
innocent acts in mans private life or per
sonal peculiarities for which lie is in no way
responsible may be so made use of by mis-
chievons person as to destroy the comfort of
| life and it seems unreasonable that no personal
redress can be had. 1t would seem
that there ought to be some remedy besides
such as the public authorities may see fit TO
pursue"
We have then the opinion of this distn-
gnished jurist that for such class Of cases as
| he instances, there is no remedy by civil ac-
ton, although contrary to sense of Justice.
The law in respect TO words of most injurious
character to feelings and reputation has been
characterized by Lord Campbell as "unsatis-
factory" and Lord Brougham would substitute
| the word "barbarous."
Chancellor Kent says "There is much JUS
ticc and sound policy in the opinion that in
private as well as public prosecutions for
libels the inquiry should be pointed to the
innsccnce or malice of the publishers inten-
tons. The truth ought to be admissible in
evidence TO explain that intent and not in every
instance to justify it."
| understand the effect of these eminent
authorities to be that plaintiff cannot main
| tain civil action for libel by the publication
of his own letter, although they regret that
a mischicvous or malicious publication may
not be a ground of action for recovery of dam
ages,
But il it is not to be maintained as 4 libel
although it is publication of and concerning
the plaintiff what grounds OF action APPEAR
1t is clear by the authorities that Equity will
enjoin the publication Of letters OIL the ground
Of exposing private confidence, but it does not
follow that if the publication of the latter class
have been made that damages can be recover
ed for injury to the feelings or reputation of
the writer There cannot be said in the pre-
| sent case to be a violation of confidence for
the writer had sent the letter with leave to
publish and il had been published. There is
no allegation of loss to the writer by a
second publication and his claim is not for loss
but for damage to reputation.
The plaintiff also relies upon the provi-
sions Of section lIl6 of our Civil Code.
| This gives a form in which actions may be
brought upon unliquidated demands: 1t is
the compliment Of the form given in section
HOO, for actions on vouchers certain or CON-
putable by the Court, and of the form given
in section Ills for the recovery of specific
| property. 1t (that Of sec. llI6) covers the
wide range of all common law actions not CON-
| ing within the specific limits of the other two.
But it cannot be considered that this meager
form therby dispenses with the application Of
all the settled principles of common law ac-
tions. If it would this action might be treated
as libel whatever requisites Of such an action
as held by all the authorities, il might lack.
The form leaves all these to be maintained by
this parenthetical clause (''here set forth the
cause and the manner in which tho injury was
done, circumstantially with the view to