PART II. PERSONAL RIGHTS. SECTION 43. General personal rights. 44. Defamation, what. 45. Libel, what. 46. Slander, what. 47. What communications are privileged. 48. Malice not inferred. 49. Protection to personal relations. 50. Right to use force. personal 43. Besides the personal rights mentioned or rec- General ognized in the POLITICAL CODE, every person has, rights. subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. NOTE. There is no doubt that persistent public insults, e. g., continually shouting at a person in the street, or even silently dogging him, are personal injuries, against which he ought to be protected. Why is not an act which the law admits almost to justify, certainly to mitigate, the crime of assault and battery, sufficient foundation for a civil action? Compare Adams vs. Rivers, 11 Barb., p. 390, where an action for use of insulting words, by one standing in the highway in front of plaintiff's land, was sustained on the ground of the trespass involved in standing in the highway after being ordered to depart, for the malicious purpose evinced. 44. Defamation is affected by: 1. Libel; 2. Slander. Defamation, what. Libel, what. Slander, what. 45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. NOTE.-Cool. Bl. Comm., I, p. 133; ib., III, p. 125; 2 Kent Com., p. 17; Thrall vs. Smiley, 9 Cal., p. 530; Maynard vs. Fireman's Fund Insurance Co., 34 Cal., p. 48; Stone vs. Cooper, 2 Den., p. 293; Cooper vs. Greely, 1 Den., p. 347; Steele vs. Southwick, 9 Johns., p. 214; Villers vs. Mousley, 2 Wils., p. 403; Miller vs. Butler, 6 Cush., p. 71; Hagan vs. Hendry, 18 Ind., p. 177; Steele vs. Southwick, 9 Johns., p. 211; 1 Hilliard on Torts, p. 237. In all definitions of libel or slander at common law, malice is treated as a necessary ingredient. But in the absence of a proper motive for the publication, malice is conclusively presumed, and the publisher of a libel is responsible, although clearly free from actual malice.-Hunt vs. Bennett, 19 N. Y., p. 173; Lewis vs. Chapman, 16 id., p. 369. 46. Slander is a false and unprivileged publication other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; or, 4. Imputes to him impotence or a want of chastity; 5. Which, by natural consequence, causes actual damage. NOTE.-Cool. Bl. Comm., I, p. 153; ib., III, p. 123; McDaniel vs. Baca, 2 Cal., p. 326; Butler vs. Howes, 7 Cal., p. 87; Bradley vs. Gardner, 10 Cal., p. 371; Scott vs. Harbor, 18 Cal., p. 704; Williams vs. Hol- 47. A privileged publication is one made: 3. In a communication, without malice, to a person interested therein, by one who was also interested, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, or who was requested by him to give the information; 4. By a fair and true report in a newspaper, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof. NOTE.-Perkins vs. Mitchell, 31 Barb., p. 461; Lewis vs. Chapman, 16 N. Y., p. 369; Thorn vs. Moser, 1 What communications are privileged. inferred. 48. In the cases provided for in Subdivisions 3 and Malice not 4 of the preceding section, malice is not inferred from the communication or publication. 49. The rights of personal relation forbid: 1. The abduction of a husband from his wife, or of Protection a parent from his child; 2. The abduction or enticement of a wife from her husband, of a child from a parent or from a guardian entitled to its custody, or of a servant from his master; 3. The seduction of a wife, daughter, orphan sister, or servant; 4. Any injury to a servant which affects his ability to serve his master. NOTE.-Cool. Bl. Comm., III, pp. 138-141. Perhaps the provision in Subdivision 1 is new, and doubtless as a matter of fact it would rarely be taken advan to personal relations. Right to use force. tage of. Nevertheless, the injury is a very great one, and one, unhappily, not entirely unknown. Bennett vs. Smith, 21 Barb., p. 439; Scherpf vs. Sczadeczky, 4 E. D. Smith, p. 110; see People vs. Olmstead, 27 Barb., p. 9; Lumley vs. Gye, 2 Ell. & Bl., p. 216. The provision in Subdivision 3 is new, as to the sister and daughter. Dain vs. Wyckoff, 7 N. Y., p. 191. The legal fiction by which the action of seduction has long been sustained has always been considered too narrow for the purposes of justice. Woodward vs. Washburn, 3 Den., p. 369; Martinez vs. Gerber, 3 M. & G., p. 88. 50. Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative to the third degree, a ward, servant, or master. NOTE.--Rol. Abr., Trespass, D.; Leeward vs. Basilee, 1 Salk., p. 407; Seaman vs. Cuppledick, Owen, p. 150; Blades vs. Higgs, 10 C. B. (N. S.), p. 713. |