62 So. 73 | Ala. | 1913
Action for “slander of title to rea L estate.”
Referring to our early case of Hill v. Ward,, 13 Ala. 310, it was said in Griffin v. Isbell, 17 Ala. 186: “The action of slander, in all its varieties, is one of peculiar strictness in respect of the pleadings and the evidence. There is, perhaps, no other civil action which has been treated so strictly by- the courts.”
In Hill v. Ward the action was grounded upon declarations and conduct whereby a sale of personal property at auction was alleged to have been wrongfully interfered with. In the course of that opinion it was said: “Conceding that a party is liable for any false and malicious words spoken to the prejudice of another, if special damages ensue, the allegations contained in these counts, in our opinion, do not bring them within the rule.” Italics supplied.
We have set out in this quotation from Hill v. Ward, for that it imports a recognition — though by the way, as to the point particularly ruled upon — the idea that special damages, naturally, proximately, resulting, is the gist and heart of the action of “slander of title to property.”
The Supreme Court of Minnesota, in Wilson v. Du Bois, 35 Minn. 472, 29 N. W. 69, 59 Am. Rep. 336, has thus pronounced: “The action is in the nature of one for slander of title; * * * and hence it is not the ordinary action for slander, properly so called, ‘but an action on the case for special damages sustained by reason of the speaking’ complained of. [Citing a number of apt authorities.] Special damages are therefore of the gist of the action. — Wetherell v. Clerkson, 12 Md. 597. Without them the action cannot be maintained ; and therefore a complaint failing to allege them fails to allege a cause of action.” See volume 20, Notes to Am. Rep. 981, for note to this case. The following authorities are to the same effect: Burkett v. Griffith, 90 Cal. 532, 27 Pacfl 527, 13 L. R. A. 707, 25 Am. St. Rep. 151, with satisfactory note on pages 707, 708, collating additional decisions on the subject; Swan v. Tappan, 5 Cush. (Mass.) 104, 109, 110; 13 Ency. Pl. & Pr. pp. 97, 98, and notes.
The text last cited is this: “Averment of special damage is necessary. An allegation of loss in geheral terms is not sufficient. As words spoken of property are not in themselves actionable, it is necessary to allege the facts which show wherein the plaintiff: has sustained damage; and, as special damage is the only ground upon which the action can be maintained, it is essential that.
The nature and essential effect of the special damage suffered, if the action is maintainable, is that the false and malicious matter charged interrupted, or injuriously affected, some dealing of the plaintiff with his property, or naturally, reasonably, and proximately superinduced the necessity for his pecuniary expenditure to relieve his right to the property from the damnifying effect of such false and malicious slander. — Burkett v. Griffith, supra; Wilson v. Du Bois, supra; Chesebro v. Powers, 78 Mich. 472, 44 N. W. 290; 25 Cyc. pp. 563, 564, and notes.
Mental perturbation suffered, in however immediate consequences of such false and malicious slander, is not within the range of the special damage naturally, reasonably, and proximately resulting from slander of the title to property; and in an action of this character consequential mental distress is not an element of recoverable special damages. In this connection the following statement by Judge Freeman (Gent v. Lynch, 23 Md. 58, 87 Am. Dec. 562) appears particularly apt and well supported by authority: “To maintain the action, the words must not only be false, but they must be uttered maliciously, and be followed as a natural and legal consequence by a pecuniary damage to the plaintiff, which must be specially alleged in the declaration and substantially proved at the trial.”
The Supreme Court, in Pollard v. Lyon, 91 U. S. 237, 23 L. Ed. 308, pronounced to the same general effect with respect to special damage. And in this jurisdiction the court, in the analogous (as to count 3) case of Ivey v. Pioneer Savings & Loan Co., 113 Ala. 359, 21 South. 531, illustrated the same principle. To like
Measured by tbe rule stated, it is evident that neither the original complaint, nor that pleading after amendment, sufficiently set forth any recoverable special damage suffered by plaintiff in consequence of the averred false and malicious slander of his title to the property particularly described. What averments are made from which a possible conclusion of pecuniary loss may be drawn are most general, far from being distinct and particular.
The case, from the Court of Appeals of Missouri (St. Louis), of Butts v. Long, 94 Mo. App. 687, 68 S. W. 754, is not in accord with the weight of, and best considered, authority on the question of necessity to particularly aver the basis and circumstances upon which the claim of special damages is rested. In Gheseboro v. Powers, supra, the court does not appear to have undertaken, if indeed it Avas invited, to rule upon the sufficiency of the initial pleading. It seems, however, that there the essential facts to support a claim of special damage were particularly averred.
It is urged that Code, § 2459, operates to avert the application of the strict common law rules to which reference has been made. That section reads: “The OAvner of any estate in lands may maintain an action for libelous or slanderous Avords falsely and maliciously impugning his title.” That section created no new or different cause of action. It is but a general reaffirmation of a general right recognized, as appears from the authorities ante, at common laAV. That statute has not effected, and it was not so intended, any change in the rules of pleading applicable to the character of action to Avhich its general affirmation of right relates.
Affirmed.