125 Tenn. 437 | Tenn. | 1911
delivered the opinion of the Court.
Patterson brought this suit in the circuit court of Maury county against the defendant, Cheatham, for $5,000 for oral slander. There was a trial before the circuit judge and a jury, which resulted in a verdict of $375 in favor of the plaintiff, which, upon the suggestion of the court, was remitted to $250, for which judgment
The alleged slanderous words laid in the first count are that Cheatham “had bought beer from him (Patterson) at his (Patterson’s) store,” and in the second count that he (defendant) was satisfied that he (plaintiff) “was and had been selling whisky,” and in the fifth count that he (defendant) “had orders from the company for the hands not to trade with him (plaintiff) because they were purchasing whisky from him (plaintiff.)”' The third and fourth counts are not before us.
All that can be gathered from the colloquium set out in the first count of the declaration with respect to the-alleged sale of beer is that the defendant falsely and maliciously charged the plaintiff with the violation of a criminal law of the State by speaking the words set out of and concerning him in the presence of divers persons. Likewise, all that is shown in the declaration concerning the speaking of the words to the effect that defendant was satisfied that the plaintiff was and had been selling whisky is the averment that the charge was falsely and maliciously made and imputed to the plaintiff an unlawful act. With respect to the last words quoted above, as laid in the fifth count, it is averred that the defendant ’falsely and maliciously charged the plaintiff with selling
The question presented for determination is whether •any of the alleged slanderous words averred in the declaration are actionable per se. No special damage is ■averred, and before the plaintiff can maintain his action the words alleged to have been spoken must be actionable per se. Rodgers v. Rodgers, 11 Heisk., 757; Smith v. Smith, 2 Sneed, 473.
It is also a well-settled rule of practice that if the alleged defamatory words are indefinite or ambiguous, and do not of themselves show that the plaintiff was meant, the pleadings must state such extrinsic facts and ■circumstances as will connect .the plaintiff with the al
Until the case of Smith v. Smith, 2 Sneed, 473, it was the rule in this State that the common law gave no action for mere defamatory words, unless producing special damage, and confined the action of slander to such grosser words as impute positive crime. Williams v. Karnes, 4 Humph., 10. In that case the rule was extended to include cases where the charge “imputes an offense, whether a crime or misdemeanor, involving moral turpitude, and for which an indictment or presentment will lie, then the words that impute it are in themselves actionable.” The court quoted with approval from Chief Justice De Grey in Onslow v. Horne, 3 Wils., 177, as follows:
“The rule is that the words must contain an express imputation of some crime liable to punishment, some-capital offense, or other infamous crime or misdemeanor, and the charge upon the person spoken of must be precise.”
In direct connection with the rule stated, the court adopted the definition of moral turpitude, as- given by Mr. Webster, to be “inherent baseness or vileness of principle in the human heart; extreme depravity.”
It was held in Williams v. Karnes that a charge that plaintiff altered the earmark of defendant’s hog from defendant’s to plaintiff’s, or procured it to be done, was not actionable per se, in the absence of an averment that the mismarking was done for the purpose of fraudulently appropriating the property. This holding was based upon the principle that the offense of mismarking was not at that time indictable, or, if indictable, was not subjected to corporal or infamous punishment, and therefore the imputation of the offense does not amount to verbal slander, without allegation and proof of special damages.
All sales of intoxicating liquors are not unlawful within this State. So, if it be conceded that selling intoxicating liquors involves moral turpitude within itself, there is nothing -in the words imputed to defendant, either standing alone or in connection with the averments of the declaration, which show&tkat plaintiff was charged with a crime. It has recently been held
Sales for all nonbeverage purposes, such as medicinal, scientific, culinary, and the like, are lawful. Likewise, it was necessary for the declaration to show that the words spoken of plaintiff meant that plaintiff had made unlawful sales of intoxicating liquors within twelve months from the time the words were spoken. If the plaintiff had made sales unlawfully, but more than twelve months before the defendant accused him. thereof, he would be guilty of no indictable offense punishable under the law. It was necessary for the plaintiff to affirmatively show, either from the words imputed to the defendant, or by a colloquium stating the circumstances under which the words were spoken and the situation of the parties, that the sale imputed to him was unlawful. Genera] words imputing a sale, which may be lawful or unlawful, are not actionable per se. The court will indulge no presumption to supplement the case stated in the declaration. The plaintiff must state a case, in actions for oral slander, which clearly shows that defendant imputed to him an indictable offense involving moral turpitude, which is punishable under the law. Every element of the offense must be embraced within the words alleged to have been spoken of and concerning the plaintiff, or it must be shown by proper aver-ments that their clear meaning was of that effect, and that they were spoken in such a way that bystanders so
“Where defamatory matter imputing a crime is published in terms prima facie actionable and unequivocally expressive of the essential ingredients of the crime alleged to be charged, no prefatory averment of extraneous facts is required. But where the imputation dues' not per se import criminality, and depends on extrinsic facts to explain it, these facts must be set forth, and connected with the defamatory words by a colloquium, so as to show that a crime was charged. If the words may be understood in a sense not criminal, and there is no colloquium to show that they were spoken in a criminal sense, they are not actionable.”
The writ of certiorari is allowed, and the judgment of the court of civil appeals, reversing the judgment of the circuit court and remanding the case for new trial, is reversed, the demurrer sustained, and the suit dismissed, at plaintiff’s cost.