dissenting.
This is an action of slander, and the words charged are, that he (plaintiff) “was a rascal, and had sworn falsely, and that he (defendant) had the documents to show for it.” There was a verdict and judgment for the plaintiff, and the defendant appealed.
If the case was before this court on the merits, I should have no objection to the affirmance of the judgment. But the attention of the court has been called to a bill of exceptions taken to the refusal of the judge to charge the jury as he was requested to do by the defendant’s counsel, and also, to the charge which he gave. I am of opinion that the first part of the charge given, as far as the judge ought to have gone, is substantially that which was'called for, and that the alteration he made in the form is correct.
The first part of the charge is in the following words: “ If you consider the words spoken, in a popular sense, conveyed the idea that he committed a legal crime, you will find for the plaintiff such indemnity as, in your sound discretion, ought to be given according to the injury done to the plaintiff in his feelings or calling.”
This part of the charge appears to me in perfect conformity with the principles established by the decisions of this court.'
In the case of Stewart vs. Carlin, 2 Louisiana Reports, 73, the court took the position that in actions of slander there are words for which damages will be given, although none were proved to have resulted from them ; id est, words actionable in themselves, from which it follows, as a corollary, that there are others for which no damages will be given, unless some are proved to have resulted from them ; id est, words not actionable in themselves. The court in that case said, “in actions of slander the court or jury must, in many *410cases, allow damages when no special damage is shown.” This strongly implies that there are cases in which damages are not to be given unless they are specially proved. In the same case, we held that words charging the plaintiff with perjury, were of the first class.
In the case of Moore vs. Stokes, 6 Martin, N. S., 538, the same principle was recognized ; “ the defendant having charged the plaintiff with having sworn to a lie, in open court, in a suit in which the then defendant was plaintiff.”
In the case also of Stackpole vs. Hennen, 6 Idem, N. S., 481, the charge was, that the defendant being of counsel in a suit in which the plaintiff was a witness, said that the latter had perjured himself, and had come into court with the intention of doing so. The plaintiff had a judgment which was reversed on appeal, and judgment of nonsuit entered, on the ground that counsel are not responsible for statements made by them if they are pertinent to the cause, and the counsel is instructed by his client to make them.
In several other cases this court has held that a charge of perjury supports an action of slander.
In the case of Trimble vs. Moore, 2 Louisiana Reports, 577, the defendant having charged the plaintiff “ with having stolen three hundred dollars in money and notes, and having run away ; ” and the proof being that he “ had taken from defendant’s store to the amount of two or three hundred dollars in money and notes, and had run away with them,” the court held that the charge was supported and entitled the plaintiff to his action.
Swearing falsely in one of those voluntary affidavits, which religion forbids, and the law discourages and disregards, was considered by this court in the case of Wamack vs. Kemp, 6 Martin, N. S., 477, as an offence, the charge of which did not support an action of slander, unless damages were proved. The accusation there was, “that-the defendant charged the plaintiff in an affidavit with the crime of perjury, and at different times and places told, in the hearing of many persons, that the plaintiff had been guilty of perjury;” there was a verdict and judgment for the plaintiff, and on appeal *411this court reversed the judgment and gave one for the defendant.
In this case the petition contained two distinct counts: One of them on a written charge of perjury in an affidavit, and the other oral, charging the same crime in the hearing of several persons. This court was of opinion that the first charge having been made in a legal proceeding, with a view of bringing the plaintiff to justice, was not actionable. As to the oral charge the evidence disclosed that the swearing was not in a legal proceeding, but in a voluntary affidavit. The case was this: The plaintiff for some unknown cause made oath before a magistrate, “ that he had never invaded the marital rights of the defendant.” This court expressed the opinion that the plaintiff having taken the oath in a voluntary affidavit, neither taken or intended to be used in a legal proceeding, the judgment against him must be set aside.
These cases fully support the part of the judge’s charge under consideration. He added “that he was not prepared to say that mere words of heat, such as that another is a rascal, ought to occasion damages,” “unless he shows he was injured by being deprived of his employment.” The defendant’s counsel has complained of this portion of the charge. He has urged that the words are not actionable at all; even, with proof of special damage. That they are words of heat and passion; the privilege of the vulgar; having no deter minate meaning, calculated only to manifest the ill humor of him who utters them, without fixing any positive stigma on the person to whom they are applied. The counsel has adduced, to maintain his position, numerous authorities from the decisions of the courts of the other states of the Union, and of England. As special damages are not alleged in the petition, the defendant cannot be injured by the opinion expressed in the charge of the judge a quo, because it is favorable to him. I, therefore, think that this court is not called on, in the decision of this case, to say whether, in our jurisprudence, there are words not actionable even when damages are shown.
*412The second part of the judge’s charge ought not, in my opinion, to receive the sanction of this court. It is as follows: “ If the language used, charged the plaintiff with moral turpilude, falsely and maliciously, in such a way as in their opinion to injure his character and standing in society, they may find for the plaintiff, without showing special damages.”
This part of the charge appears to me absolutely useless, and inconsistent with what the judge had said before. He had expressed his opinion upon all the charges in the petition ; that of forswearing, and that of calling the plaintiff a rascal. There was nothing before the court to which this last part of the charge is applicable.
He had said that a charge of false swearing was not actionable without damage being shown, unless the false swearing constituted a legal crime; id est, perjury, or a false oath taken in a judicial proceeding, knowingly, in a matter material to the issue. This was negativing the idea that the moral offence of false swearing, in a voluntary affidavit, not taken or intended to be used in a legal proceeding, was one, the malicious charge of which was actionable. Such a moral offence certainly constituted moral turpitude.
The charge appears to be too vague and loose ; the words moral turpitude, too general: Pothier says, “that giving of alms is a real obligation, and the neglect of it is a high offence.” Further, “ that he who has received a signal benefit is obliged to render his benefactor all his services, in his power, when occasion offers for his doing so, and it is sinful and dishonorable to neglect it.” (Obligations No. 1.)
Thus, moral turpitude is the breach of the duties of charity and gratitude, and our learned brother of the District Court certainly did not mean to say, as his charge implies, that words charging a man with want of gratitude were actionable, without any damage being shown.
The article of the Decalogue says, “ swear not at all.” It has been generally and almost universally believed that, the prohibition does not extend to oaths required or authorized by law; the taking any other is a disregard of God’s command, even, when the matter sworn to is true, and an *413act of moral turpitude. Yet this court, those of all - the other states in the Union, and those in England, hold, that a charge of having taken a false oath, in a case in which the law neither requires or authorizes an oath to be taken, is not such an act of turpitude that the charge of it is actionable in itself.
The judgment should be reversed, and the case remanded, with directions to the judge, not to instruct the jury, that “charging the plaintiff falsely and maliciously, with moral turpitude, so as to injure his character and standing in society, they should find damagesfor him, without any special damage being proved.”It is meet that while we administer justice to the parties who litigate their rights in this court, the rest of the community may, as much as possible find in our judgments a fixed and certain rule on which they may rest assured that, in future, similar cases will be decided.
My humble efforts have been united with those of my former colleagues, and we have concurred with great unanimity in a number of decisions which form an almost complete system of jurisprudence in regard to the action of slander. In most of these cases I had the honor of being the organ of the court. I am not dissatisfied with the decisions given in any of them, and I regret, that a portion of the charge of the judge a quo, in the present case, is about to overthrow the established system, and leave the people of the state without any rule or guide in the action of slander; and the opinion of the jury, unaided and uncontrolled by the courts, is to be the sole criterion and standard of their rights.
I conclude, that we ought to reverse the judgment of the court, set the verdict aside, and direct the case to be remanded, with directions to the judge a quo, to abstain from instructing the jury “that if the words charged the plaintiff falsely and maliciously with moral turpitude, so as to injure his character and standing in society, they might find for the plaintiff, without showing any special damagesand that the plaintiff and appellee pay the costs of this appeal.
But the majority of the court being of a different opinion, it is, nevertheless, ordered and decreed, that the former judgment of this court, remain undisturbed.