of the defendant in the competitive pursuit of a lawful livelihood, is [not] excusable.1 (6) Harm caused with a motive of injuring the plaintiff, because of conduct of his which is reprobated by a substantial local public opinion, and not because of personal enmity of the indi (5) Harm caused with a motive of injuring the plaintiff, solely in revenge or spite arising from personal enmity, vidual defendant, is excusable.3 is not excusable.2 SUB-TITLE (IV): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR EQUALITY OF OPPORTUNITY FOR THE ACQUISITION OF A TRADAL REPUTATION Damage | tarily chosen his surname, or has used it in a business begun since the plaintiff's patronage was acquired, it is subject to be modified so far as necessary to avoid unfair diversion of trade.4 § 281. General Principle. done by diverting from the plaintiff the patronage of persons who desire goods or services bearing his distinctive name or mark and who are misled into accepting the defendant's goods or services bearing the identical mark or name (ante, § 70) may be excused in so far as the policy of securing equality of opportunity for the acquisition of a tradal reputation renders such damage inevitable. The damage is inevitable when for the defendant, in the ordinary course of circumstances, and not primarily with a view to divert to himself the benefit of the plaintiff's tradal reputation, the same name or mark is the natural one for identifying his own goods or services, and a different name or mark would unfairly restrict the defendant in his occupation under the circumstances. Such conditions arise as follows: § 282. Common Surname. A defendant bearing the same surname as the plaintiff is thus excused; but where the defendant has volun § 283. Common Locality. A defendant living in the same locality is thus excused; unless the locality was voluntarily sought by the plaintiff for the purpose of unfair diversion of trade. Distinctions. The plaintiff can have no right of registered trade-mark in his right to fair trade irrespective of the name of a locality (ante, § 75); yet the registration (ante, § 71) remains to protect him against the present sort of interference. § 284. Common Materials or Process. A defendant using the same materials or process is thus excused; but a name descriptive of such materials or process and identical with the plaintiff's is subject to such modification as will avoid unfair diversion of trade. 1 Allen v. Flood, No. 844 (labor union's strike for a "closed shop"); Martell v. White, No. 849 (merchants' association boycott); Berry v. Donovan, No. 850 (labor union's strike for a "closed shop"; classed as not excusable); Pickett v. Walsh, No. 851, point 1 (labor union's strike for a monopoly of a class of work). 2 Tuttle v. Buck, No. 846. 3 Karges Furniture Co. v. Union, No. 847. Croft v. Day, No. 859; Russia Cement Co. v. Lepage, No. 860; Charles S. Higgins Co. v. Higgins Soap Co., No. 861. 5 American Waltham Watch Co. v. U. S. Watch Co., No. 862; PillsburyWashburn F. M. Co. v. Eagle, No. 863; Shaver v. H. & M. Co., No. 864. Singleton v. Bolton, No. 866; Reddaway v. Banham, No. 867; Singer Mfg. Co. v. June Mfg. Co., No. 868; Jacobs v. Beecham, No. 869. SUB-TITLE (V): POLICIES SEEKING JUSTIFICATION IN THE NECESSITY FOR FREE DISCUSSION AND CRITICISM OF CHARACTER AND CONDUCT § 285. General Principle. Damage done to the plaintiff by way of loss of profitable social relations (ante, §§ 5669), caused by the defendant's published assertions concerning the plaintiff, may be excused in so far as the benefits sought by the general policy of freedom of discussion and criticism of character and conduct cannot be titions of Untrue Statements. obtained without granting immunity for harm done by the class of assertions made by the defendant. Such assertions fall into three general classes, in which the policy of free discussion has radically different applications: 1. True Statements; 2. Untrue Statements; 3. Reports or Repe § 288. General Principle. An untrue plaintiff, to defeat this excuse, must statement is excused if it was made (1) in the honest belief of its truth, and (2) for a purpose not malicious; and (3) under circumstances which, if the statement had been true, would have made the publication of the statement a just measure for the protection of an interest of the defendant or of third persons, as provided in §§ 292–299, post. § 289. Pleading; Judge and Jury. (1) The defendant must plead and prove the interest sought to be protected; the then prove the defendant's lack of honest belief and also his malicious purpose.4 (2) The existence of an honest belief and of a non-malicious purpose is for the jury's determination; the existence of an interest justifying the statement for its protection is a question of law for the judge." § 290. Honest Belief; Probable Grounds. The defendant's belief in the truth of the statement may be an actual belief only, and need not be a 1 Underwood v. Parks, No. 872; Weaver v. Lloyd, No. 873; Torrey v. Field, No. 874. 2 Underwood v. Parks, No. 872; Weaver v. Lloyd, No. 873. De Libellis Famosis, No. 877; Judges' Opinion, No. 878; Statutes and Constitution, Nos. 879, 881; Larson v. Cox, No. 882. 4 Wright v. Woodgate, No. 899; Bacon v. T. Co., No. 900; Coleman v. MacLennan, No. 905. 5 Bacon v. R. Co., No. 900; Nichols v. Eaton, No. 902; Ashcroft v. Hammond, No. 904. belief for which probable grounds existed.1 § 291. Non-Malicious Purpose. (1) The defendant's purpose must be sincerely to protect the interest created by the circumstances, and not merely to injure the plaintiff or to gratify the defendant's own spite against the plaintiff.2 (2) When no probable grounds existed for the defendant's belief, his malicious purpose may be inferred without other and specific evidence thereof. § 292. Protection of One's Own Interest. The statement is a just measure for the protection of the defendant's own interest when (1) the surrounding independent circumstances, as believed by him, have created a risk of material loss to the defendant, such as can reasonably be avoided or diminished by communicating with a third person; (2) and the statement is made to that person or persons only whose action can aid in avoiding or diminishing the loss, and to no others, except those whose participation is reasonably unavoidable in communicating with the former;' (3) and the terms of the statement do not exceed, in substance or in form, what is reasonably necessary for the purpose.5 § 293. (1) the statement is excused when it asserts that the plaintiff lacks title to property claimed by the defendant as his; 6 (2) the statement is excused when it asserts that the plaintiff's goods are inferior in quality to the defendant's goods sold in competition with them." § 294. Protection of Third Person's Interest. The statement is a just measure for the protection of a third person's interest (1) when the surrounding circumstances, as believed by the defendant, have created (a) for the third person, an interest, i. e., a risk of material loss such as can be reasonably diminished or avoided by communicating with him, and (b) for the defendant, a duty, i. e., a special personal legal or moral duty on the defendant to protect the third person; and (2) when the statement is communicated to the interested third person, or to such other person as can assist in protecting him and to no others, except those whose participation is reasonably unavoidable in communicating with the former; 10 and (3) when the terms of the statement do not exceed, in substance or in form, what is reasonably necessary for the purpose." § 296. Protection of the Public Interest: (a) Definite Interest. The statement Same: Slander of Title or is a just measure of protection for the Goods. In particular, public interest 1 Bays v. Hunt, No. 929; Gray v. Pentland, No. 927. 2 Woodward v. Lander, No. 896; Coward v. Wellington, No. 898; Coleman v. MacLennan, No. 905. Welling Delany v. Jones, No. 895; Toogood v. Spyring, No. 897; Coward v. ton, No. 898; Bacon v. R. Co., No. 900; Weston v. Barnicoat, No. 901; Nichols v. Eaton, No. 902; Ashcroft v. Hammond, No. 904. 4 Woodward v. Lander, No. 896; Toogood v. Spyring, No. 897; Puterbaugh v. Gold M. F. M. Co., No. 903; Ashcroft v. Hammond, No. 904. 5 Woodward v. Lander, No. 896; Nichols v. Eaton, No. 902. Smith v. Spooner, No. 907; Halsey v. Brotherhood, No. 908. 7 White v. Mellen, No. 909. 8 Rude v. Nass, No. 917; Pollasky v. Minchener, No. 918. Rodgers v. Clifton, No. 911; Todd v. Hawkins, No. 913; Whiteley v. Adams, No. 914; Davies v. Snead, No. 915; Waller v. Loch, No. 916; Rude v. Nass, No. 917. 10 Harwood v. Green, No. 912; Rude v. Nass, No. 917; Pollasky v. Minchener, No. 918; King v. Patterson, No. 919. 11 Todd v. Hawkins, No. 913. (1) when the surrounding circum- conditions of the foregoing rule, stances, as believed, have created an § 296. interest, i. e., a risk of material loss to some specific class of persons in the community, such as can be reasonably avoided or diminished by publishing the statement, and (2) when the defendant, by virtue of being a member of the same community, has a duty to assist in protecting the common interest, and (3) when the statement is made to such persons as are able, in the defendant's belief, to assist directly in protecting the public interest in question, and to such others only as necessarily receive the information from any mode of publication reasonably indispensable for reaching the former.1 § 297. Same: (b) Indefinite Interest. The statement is a just measure of protection for the public interest (1) when the subject of the statement is the conduct of the plaintiff in any matter commonly deemed to be a fair subject for the formation of a sound public opinion, and (2) when the tenor of the statement is confined to the fair expression of comment, in the nature of a judgment or opinion upon the moral or professional quality of such conduct, as distinguished from an assertion of the facts of conduct on which the judgment is based.2 § 298. Same: (c) Anomalous Rule. [A statement is a just measure of protection for the public interest (c) when it fulfils the conditions of § 296, and no otherwise, even though it consists merely in a fair expression of comment in the nature of a judgment or opinion and does not assert any untrue facts of conduct.3] This rule, accepted in a few. States, ignores entirely that of § 297 (“fair rule of § 296 even to statements which comment"), and applies the stricter do not assert facts of conduct but merely express an opinion on them; thus substituting rule (c) for rules (a) and (b). § 299. Same: (d) Anomalous Rule. [A statement is a just measure of protection for the public interest (d) when it fulfils the conditions of clause (1) in § 297, even though it is not confined to an expression of comment in the nature of a judgment or opinion, but is also an assertion of untrue facts of conduct."] repudiates the limitations of rule (a), This rule, accepted in a few States, in § 296, and applies only those of rule (b), in § 297; thus substituting rule (d) for rules (a) and (b). Perhaps, however, it means to include the limitation of clause (3) in § 296, as to the class of persons reached by the Thus, assertions of the latter sort are excused only when they fulfil the publication. Topic 3. Repetitions and Reports of Untrue Statements as provided in the foregoing rules; 5 § 300. General Principle. A state- is not thereby excused, otherwise than ment which consists merely in repeating or reporting an untrue statement previously made by another person, without any attempt to give it credit as a personal assertion of the defendant, unless the statement thus reported was of a class otherwise rendered lawful by virtue of the occasion of its utterance, and the occasion was a 1 Lake v. King, No. 925; Thorn v. Blanchard, No. 926; Gray v. Pentland, No. 927; Smith v. Higgins, No. 928; State v. Haskins, No. 930. 2 Carr v. Hood, No. 931; Campbell v. Spottiswoode, No. 932; Whistler v. Ruskin, No. 933; Hunt v. Star N. Co., No. 934; Burt v. Advertiser N. Co., No. 935. 3 Bronson v. Bruce, No. 936. 4 Coleman v. MacLennan, No. 937. 5 Lewis v. Walter, No. 939. deliberative proceeding for which general policy aims to secure the widest publicity. that was said on that topic during that meeting, and (2) the proceeding was one open to Such occasions are of the following the public.2 sorts: The § 301. Judicial Proceedings. report of a statement made during a judicial proceeding is excused, irrespective of the untruth of the statement, if (1) the report includes a fair statement of at least the substance of all that was uttered as a part of the proceeding, and The details of the rule have been little elaborated by the Courts, and the above is a tentative phrasing. $303. Other Deliberative Meetings. The report of a statement made during a deliberative meeting of any other kind is excused, irrespective of the untruth of the statement, if (1) the report is a fair statement of the substance of all that was said on (2) the proceeding was one open to that topic during that meeting, and the public, and (3) the proceeding reported, if incomplete, was at least one distinct stage in a continuing proceeding.1 § 302. Legislative Proceedings. The report of a statement made during a legislative proceeding is excused, irrespective of the untruth of the statement, if (1) the report includes a fair state (2) the meeting is one open to the public, and (3) the body holding the meeting is a board or committee of State officers, or a society having a franchise-duty to act on behalf of the community in respect to the subject of the meeting, or a group of citizens exercising political powers in a meeting authorized by law.3 The phrasing of Clause (3) is tentament of at least the substance of all tive only. SUB-TITLE (VI): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR FREE RESORT TO COURTS BY PARTIES FOR THE VINDICATION OF RIGHTS its procedure, and since their action, being public and official, is more likely to secure an orderly and efficient disposal of accusations and controversies than private persons' self-help, the law distinguishes in general between (1) the conduct permissible to a private person when taking his own measures for bringing another to justice, and (2) the conduct permissible when seeking the aid of judicial officers by regular process; the latter kind of conduct calling for greater immunity. § 304. General Principle. Damage with officers to administer justice in all done to the plaintiff by way of imprisonment, trespass to personal or real property, defamation, and incidental harms, caused by the defendant personally or by his instigation of public officers, may be excused in so far as the general policy of doing justice, criminal and civil, calls for the restraint of the parties' person, the sequestration of their property, and the publication of the charges, during the investigation of a controversy, and in so far as it expects the individuals who have cognizance of a supposed wrong to take a personal and initial part in bringing the complaint to the attention of judicial officers and in securing the attendance of the supposed wrongdoer. Since the State power is equipped A further distinction, between injury by arrest, attachment, etc., and injury by defamation only, is due to the different conditions peculiar to those two classes of injuries. 1 Curry v. Walter, No. 942; Lewis v. Levy, No. 943; Cowley v. Pulsifer, No. 944; Kimball v. Post Pub. Co., No. 945; Brown v. Pub. Co., No. 950. 2 Wason v. Walter, No. 949; Buckstaff v. Hicks, No. 950. 3 Statutes, No. 952; Barrows v. Bell, No. 953. |