33 Barb. 615 | N.Y. Sup. Ct. | 1861
The words charged were clearly actionable per se, if spoken of the plaintiff in his profession, as they would then clearly impute to him ignorance, recklessness or unskillfulness, if not criminality. In Tutty v. Alewin, (11 Mod. Rep. 283,) these words were spoken of an apothecary. “ It is a world of blood he has to answer for in this town, through his ignorance he did kill a woman and two children at Southampton—he did kill John Prior at Petersfield—he was the death of John Prior—he has killed his patient with physic.” They were held actionable. In Watson v. Vanderlash, (Hetley’s Rep. 69,) these words were spoken of a surgeon, “ He killed J. S.”—held actionable. Also, “he poisoned the wound of his patient for gain or money,” (1 And. R. 268,) held actionable. In Secor v. Harris, (18
But the plaintiff insists that the words charged impute to him the commission of a crime—of an indictable offense, in-
The words stated in the complaint are these: “ Doctor Carroll killed six children in one year—Doctor Carroll killed-six children—Doctor Carroll has killed some—Doctor Car-, roll and the other physicians of the village have killed seventy in one year.” The substance of the charge conveyed by these words is, that the plaintiff had “ killed” several human beings ; and the question now presented is, whether the charge of killing a human being imports an unlawful and felonious taking of life. The argument by the defendant is that to kill does not necessarily signify to murder or to slay unlawfully, and that the words are consequently capable of an innocent construction. Concede this, and it does not follow that the words are not actionable; for they are not to be considered in mitiori sensu, and if possible to be innocently construed, as was the rule of construction at a very early period. But as was said by Mr. Justice Harris in Pike v. Van Wormer, (6 Howard, 99,) the words are to be taken in that sense in which they are generally understood, and when that puts upon them a guilty sense, they are actionable. (See also Dias v. Short, 16 Howard 322; Walrath v. Nellis, 17 id. 72; Roberts v. Camden, 9 East, 93; Demarest v. Haring, 6 Cowen, 76; Starkie on Slander, 45 et seq.) The rule has been well stated, thus: the words spoken are to be taken in their natural meaning, and according to common acceptation.
The word “ kill,” when used to denote the taking of the life of a human being by another, conveys the idea of guilt. So it was held, even when words were taken in mitiori sensu, that it was actionable to say of another that he had killed a person. It was anciently held that such charge was not actionable unless there was an averpaent that the person said to be killed was dead. But this rule has not obtained for a long ' time) as this must be intended against the defendant from his own assertion. (Croswell v. Weed, 25 Wend. 621.) In
In Ecart v. Wilson, (10 Serg. & Rawle, 44,) the words were, “You have killed Bob Waters—you have poisoned him and I can prove it.” On the trial the judge charged
By the authorities, therefore, the words charged in the third count are actionable per se. They import a voluntary felonious killing, according to their natural sense and meaning. Every killing of a human being is homicide, and is justifiable, excusable, or felonious; and, as a general rule, all homicide is presumed to he malicious, and of course felonious, until the contrary appears from, circumstances of alleviation, excuse or justification. (4 Bl. Com. 201. Barb. Crim. Law, 27.) The word kill, when applied to persons, implies force, violence, a destruction of the organs necessary to life, and if unaccompanied by any explanation or qualifying words, has a felonious signification. A threat to kill a person carries the idea of a felonious purpose.
The innuendo is that the defendant, by the speaking of the words, intended to charge the plaintiff with the crime of murder. This it seems is their natural and ordinary import and meaning, hut if they amounted only to a charge of manslaughter, still they impute to the plaintiff the commission of an infamous crime punishable by law; and hence are actionable. The innuendo is of no importance in a pleading where the words laid are actionable in themselves. In such case it is wholly unnecessary to characterize the offense by an averment, and if the offense he improperly characterized in the innuendo it does not vitiate the pleading. So it was said in Barrett v. Long, (16 Eng. L. and Eq. Rep. 1,) that
Bockes, Justice.]
The plaintiff is entitled to judgment on the demurrer. But with liberty to the defendant to withdraw the demurrer, and answer on payment of costs.