I am in accord with the foregoing opinion, save as to one phase thereof. It seems to me that the trial court committed reversible *Page 631 error in admitting testimony to the effect that respondent's wife left him after the publication of the retraction, and that she had not returned prior to the trial. Respondent frankly states that no special damages were alleged or sought. Respondent, then, is limited to general damages, which are "those which the law will presume to be the natural or probable consequences of the defamatory words." Newell on Slander and Libel (4th ed.), p. 810. The same authority (pp. 824-5) defines special damages as "such as the law will not infer from the nature of the words themselves," and which must be specially claimed in the pleadings. Clearly, loss of consortium, if any basis for recovery, is special damage. Williams v. Hill, 61 Wend. (N.Y.) 305, and the texts cited above.
It is, of course, elementary that evidence of special damages is inadmissible unless such special damages be alleged in the pleadings. 2 Starkie on Slander, p. 62; Folkard on The Law of Slander and Libel (7th ed.), p. 221; Townshend on Slander and Libel (4th ed.), p. 579.
I am in accord with the majority opinion in so far as the same holds that respondent could testify that his wife was incensed because of the publication which is the basis of this action, not for the purpose of recovering damages in this action for the wife's humiliation, but as bearing upon the effect of the publication upon respondent. It seems to me, however, that when respondent was allowed to go further and testify that his wife had left him, an element was introduced into the case which was highly prejudicial to appellant and which the jury should not have been allowed to consider in awarding damages. An acquaintance or a friend is under no legal obligation to maintain that relation; he can abandon the same for any reason or for no reason. Husband *Page 632 and wife, on the other hand, owe each to the other certain duties based upon positive law. The same is true of other family relationships. If one spouse leaves the other because of a publication which in fact is true, the abandoned spouse has no right of action. If one spouse breaks up the family relation because of a publication which is admittedly untrue, no matter how humiliating or objectionable, then that spouse has violated an obligation for a reason which the law cannot recognize.
One publishing a statement which is libelous per se assumes the risk of being held in damages if the statement be false, but bears only the risk of being responsible for such damages as reasonably follow from the fact of the publication of false and libelous matter. Suppose a newspaper publishes a libelous statement concerning a young girl who is living with her parents, and the next day publishes a complete retraction, stating that it was a case of mistaken identity, and the daughter's innocence is recognized by her parents. If the parents, notwithstanding the fact that it appears beyond question that their daughter was wholly innocent of wrongdoing, throw her out of their home and refuse to have anything more to do with her, could such unjustifiable and unnatural conduct be considered as part of the basis for an award of damages? I think not, because such conduct would be unreasonable and against all established rules of human conduct, natural, moral or legal.
In an anonymous case reported in 60 N.Y. 262, it appeared that words which the court held were not actionable per se, in that they did not constitute an indictable offense, were, under the facts shown, insufficient to support any special damage. It appeared that the plaintiff, a minor, was residing with her father, who, because of the defamatory words uttered, *Page 633 refused to fulfill certain promises which he had made to his daughter. The father testified that he wholly disbelieved in the truth of the charge. The court said:
"Damage, to sustain the action, must be the natural and immediate consequence of speaking the words. (Terwilliger v.Wands, 17 N.Y. 57.) A father is bound by law to support and educate his minor child. The mode and state of the maintenance furnished, and the kind and extent of education given, is necessarily largely left to his discretion. This case it will be seen does not present the question whether a malicious slanderer of the child, who imposes upon the parent a false belief that it is guilty of vicious conduct, and thereby influences the exercise of his discretion less favorable to the child than the parent otherwise would have done, is liable to an action — in other words, whether, by such means, so influencing paternal discretion constitutes special damage to the child. In this case the father testified, in substance, that he believed the charge entirely false and groundless. It is obvious that so far from being natural, it would be highly unnatural for a parent to withhold any favor or kindness from his child on account of a falsehood reported about it. On the contrary, the tendency would naturally and legitimately be to induce more kindness and greater indulgence. Indeed, I do not think special damage can be predicated upon the act of any one who wholly disbelieves the truth of the story. It is inducing acts injurious to the plaintiff, caused by a belief of the truth of the charge made by the defendant, that constitutes the damage which the law redresses."
In the English case of Lynch v. Knight, 9 H.L. 577, it was held, on appeal to the House of Lords, that in an action by a wife for slander, the alleged ground of special damage did not show, in the conduct of the husband in leaving the wife, a natural and reasonable consequence of the slander.
So here, it appears that respondent's wife left him after the publication of the retraction. However much *Page 634 she may have been annoyed and humiliated by the original publication, in so far as it was false, Senora Luna had absolutely no reason for leaving her husband, and if she left him because she objected to any things which he in fact did, and which were brought to her attention by the publication, then certainly respondent cannot recover on that account against appellant.
Assuming that, under certain circumstances, such testimony as this might be admissible, it is certainly of a very dangerous nature, as it would be very easy for one spouse to leave the other until after the trial of an action, when any amount recovered could be enjoyed by a reunited family. In the case at bar, it does not appear that respondent's wife had divorced him, but simply that she had returned to her family in Peru, where at the time of the trial she was still residing.
It seems to me clear that the trial court improperly admitted the testimony hereinabove referred to, and that for this reason a new trial should be granted.
In any event, such testimony should be admitted only under instructions clearly limiting its scope. If the jury believed that, because of the publication, respondent's home had been broken up, and that appellant was liable for this result, clearly any award in respondent's favor would be greatly increased. From the nature of the case, the damages cannot be estimated by any recognized measure, and for this reason the court's instructions as to what the jury may consider in making any award are of great importance. Appellant requested the court to give the following instructions:
"If under these instructions you determine that the article complained of by plaintiff is libelous of plaintiff and that the libelous charges, if any, in said article were not substantially true, then I instruct you *Page 635 that in your deliberations as to the amount of damage to be awarded by you to plaintiff, if any, you shall wholly disregard the fact that the wife of plaintiff and his children are now living in Peru.
"If under these instructions you determine that the article complained of by plaintiff is libelous of plaintiff and that the libelous charges if any, in said article were not substantially true, then I instruct you that in your deliberations as to the amount of damage, if any, to be awarded by you to plaintiff, you shall wholly disregard any allegation, charge or evidence of plaintiff or statement of counsel which directly or indirectly states, intimates or tends to establish that plaintiff's wife has left him because of the publication of the article complained of by him, or that the publication of said article has caused his home to be broken up or the affection of his wife and family to be alienated;"
and excepted to the refusal of the trial court to so instruct the jury.
If it be considered that the testimony to the effect that the wife had left the home was admissible, then, in my opinion, these instructions should have been given, and the failure to give the same constitutes reversible error. The opinion of the supreme court of California, in the case of Earl v. Times-Mirror Co.,185 Cal. 165, 196 P. 57, is cited in the majority opinion as supporting the admissibility of respondent's testimony to the effect that the respondent's wife, after the publication, manifested toward him contempt, hatred and aversion. It should be noted, however, that, in the opinion cited, the court said:
"The plaintiff here did not testify to the effect of the article upon his wife, or of her grief, if any, upon him, but merely as to his own belief as to its effect upon her. That is to say, as to its effect upon his own mind. The case of Couch v.Mining Journal Co., 130 Mich. 294 [89 N.W. 936], is cited to the same effect. In that case the plaintiff sought to prove the *Page 636 effect upon the members of his family, which was held to be improper, while in this case the court was careful to instructthe jury that they were not to consider the plaintiff's testimonyas evidence of the fact that the wife was affected by thearticle. The case of Sheftall v. Central of Georgia Ry. Co.,123 Ga. 589 [51 S.E. 646], is also cited to the same effect. The distinction between these cases and the one at bar may be made manifest by an illustration. Suppose that a man feared that his wife might commit suicide when she read the article in question? This belief, however erroneous it might be, is one which would cause him mental suffering. The wife might commit suicide and neither that fact nor the effect of the suicide upon the husband could be offered in evidence to establish the measure of his damages. On the other hand, the wife might take a very cheerful view of the situation and comfort her husband instead of committing suicide. In either view the plaintiff is entitled to recover for such mental worry as is proximately caused by the article, although not by the mental worry caused by the suicide, for such worry would not be a proximate result of the article." (Italics mine.)
I incline to the view that the testimony which is referred to in this dissent was under no circumstances admissible, but in any event, it should be admitted only under an allegation of special damage. Had the trial court instructed the jury as requested by appellant, it might be held that a case of error without prejudice was presented, but as the jury were permitted to consider the testimony without any such instructions, I am of the opinion that the judgment appealed from should be reversed and a new trial ordered.
TOLMAN, J., concurs with BEALS, J.