Concurring- Opinion op
Mr. Justice McColly.In this matter I arrive at the same conclusion with Mr. Justice Austin, that the demurrer should be sustained, and had written my opinion at somewhat greater length than is here appended. It will be unnecessary to restate the case a third time.
It seems very clear that action cannot be sustained on the complaint in this case as for a libel, for it is the plaintiff’s own letter. The counsel for the plaintiff concedes this in his argument before us, although citing Cooley on Torts, p. 208, note, for authority that the truth of the publication is not always a defense in eivd cases. *250"We find this note to be only an expression of the learned author’s' opinion of what the law ought to be, against his statement in the text of what it is. He says in the -note : “ It is questionable whether the law ought not to hold truthful publications libelous in some cases where they relate to matters that no one has any business to bring before 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 a man’s private life or personal peculiarities for which he is in no way responsible may be so made use of by a mischievous person as to destroy the comfort of life, and it seems unreasonable that no personal redress can be had. * * * It 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 distinguished jurist that for such a class of cases as he instances there is no remedy by civil action, although contrary to a sense of justice. The law in respect to words of most injurious character to feelings and reputation has been characterized by Lord Campbell as “unsatisfactory,” and Lord Brougham would substitute the word “ barbarous.”
Chancellor Kent says: “ There is much justice and sound policy in the opinion that in private as well as public prosecutions for libels the inquiry should be pointed to the innocence or malice of the publisher’s intentions. The truth ought to be admissible in evidence to explain that intent and not in every instance to justify it.”
I understand the effect of these eminent authorities to be that a plaintiff cannot maintain a civil action for libel by the publication of his own letcer, although they regret that a mischievous or malicious publication may not be a ground of action for recovery of damages.
But if it is not to be maintained as a libel, although it is a publication of and concerning the plaintiff, what grounds of action appear ? It is clear by the authorities that Equity will enjoin the publication of letters on 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 recovered for injury to the feelings or reputation of the writer. There cannot be said in the present case to be a violation of confidence, for the writer had sent *251the letter with leave to publish ami it had been published. There is no allegation of a loss to the writer by a second publication and his claim is not for loss but for damage to reputation.
A. S. Hartwell and F. Preston, for plaintiff. Paul Neumann and F. M. Hatch, for defendants. Honolulu, December 30, 1884.The plaintiff also relies upon the provisions of Sec. 1116 of our Civil Code. This gives a form in which actions may be brought upon unliquidated demands. It is the complement of the form given in Sec. 1100, for actions on vouchers certain or computable by the Court, and of the form given in Sec. 1118 for the recovery of specific property. It (Sec. 1116) covers the wide range of all common law actions not coming within the specific limits of the other two. But it cannot be considered that this meagre form thereby dispenses with the application of all the settled principles of common law actions. If it would, this action might be treated as a libel, whatever requisites of such an action, as held by all the authorities, it might lack. The form leaves all these to be maintained by this parenthetical clause (“here set forth the cause and the manner in which the injury was done, circumstantially with the view to proof ”) — that is to say, set forth a legal cause of action with legal claims for damages.
If an action is brought for a publication, it must set forth legal grounds for recovery of damages, or that such publication produced a loss to the plaintiff. Failing this, the form is empty.