Baldwin v. Soule

72 Mass. 321 | Mass. | 1856

Slander.

The declaration averred that “ the defendant publicly, falsely, and maliciously accused the plaintiff of the crime of adultery, by words spoken of the plaintiff substantially as follows,” and then set forth words charging the plaintiff with adultery with Kendall Baird. At the trial in the court of commoa pleas, before Briggs, J. the plaintiff proved that the defend' ant charged the plaintiff with the crime of adultery, by words substantially, but not precisely like those set forth in the declaration. The defendant objected to the evidence, but the judge admitted it.

J. G. Wolcott, for the defendant. J. D. Colt & M. Wilcox, for the plaintiff.

The plaintiff was also permitted, against the defendant’s objection, to introduce evidence of similar statements of the defendant, made on the day after the first, for the purpose of proving malice.

After the evidence was all in, and the defendant’s counsel had begun his closing argument to the jury, the plaintiff, against the defendant’s objection, had leave to amend his declaration by adding a second count, precisely like the first, except in alleging a charge of fornication instead of a charge of adultery.

The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

Merrick, J.

1. The declaration is drawn according to the form specially prescribed by law as the mode of pleading in actions of this description, and does not purport to recite exactly the language in which the defamatory charge against the plaintiff was asserted. It states only substantially the words spoken by the defendant, and not the very words in which he uttered or published the accusation complained of. In this respect, the declaration is similar to the general count, accompanied by a specification or bill of particulars, which was in established use before the enactment of the recent statute concerning the pleadings, practice and proceedings in courts of law. And it has been held that under such a count the plaintiff was not confined to the same strict proof of the precise words set forth in the bill of particulars, as would be required to sustain a declaration specially reciting the exact words alleged to have been spoken. St. 1852, c. 312, and forms annexed. Whiting v. Smith, 13 Pick. 364. Clark v. Munsell, 6 Met. 373.

2. Evidence of the declarations of the defendant in his conversation upon the same subject on the day next after the day of the publication of the alleged slander, for the purpose of showing that he was actuated on the former occasion by malicious feelings towards the plaintiff, was clearly admissible, within the principle established by many previous decisions. Bodwell v. Swan, 3 Pick. 376. Watson v. Moore, 2 Cush. 133. Smith v. Wyman, 16 Maine, 14. 2 Greenl. Ev. § 418.

3. The amendment of the declaration was properly allowed. The cause of action stated in it is the publication and assertion made by the defendant concerning the plaintiff’s alleged unlawful intercourse with Baird. The same facts are set forth both in the original and in the amended count; and therefore the leave given to amend in no way transcended the authority of the court. St. 1852, c. 312, § 32. Exceptions overruled.