122 Cal. 58 | Cal. | 1898
Action for slander. Plaintiff had the verdict of a jury, with damages assessed at three hundred dollars. Defendant appeals from the judgment on bill of exceptions. The pleadings are verified. A general demurrer to the complaint was overruled.
The alleged slanderous words were spoken in the- French language to Frenchmen and are set forth in French with their
Defendant moved for a nonsuit at the close of plaintiff’s evidence, and he now urges error in overruling this motion. The points presented are: 1. That the complaint does not state sufficient facts because there is no statement in the nature of a colloquium of the extrinsic facts showing the words charged to have been uttered or used in an offensive sense, different from their ordinary meaning and import; and 2. The language does not state a slander pm- se and there are no allegations as to the tendency of the language to directly injure plaintiff in his trade or business, and there are no allegations as to what constitutes his trade or business, and there is no allegation of actual damage
Section 460 of the Code of Civil Procedure provides that: “In an action for libel or slander it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it sufficient to state, generally, that the same was published or spoken concerning the plaintiff.”
It is beyond dispute that the word “sell,” regarded in its ordinary meaning, does not carry with it the impression conveyed by the word “steal.” It was held in Harris v. Zanone, 93 Cal. 59, that “the statute dispenses with the colloquium and innuendo only so far as they show that the defamatory words applied to the plaintiff, and goes no further. The averments necessary in common-law pleading to show the meaning of the words must still be made.” It was also there held that where the words spoken are libelous in themselves, and were uttered in the vernacular of those to whom they were addressed, it is not necessary to make any averment other than that they were spoken of and concerning the plaintiff, nor to allege that they were understood by the hearers to apply to the plaintiff. Where the words are not libelous in themselves the rule is different. (Townshend on Slander and Libel, secs. 308, 310.) The office of the innuendo is merely to interpret the meaning of the language used; indeed, the word “meaning” is the synonym of the word “innuendo”; and so is the phrase “that is to say”; and hence it is held that, where the words spoken are actionable, an innuendo undertaking to state the same in other words is superfluous; if not actionable or libelous per se the innuendo cannot introduce a meaning broader than the words naturally bear, unless connected with proper introductory averments. (Van Vechten v. Hopkins, 5 Johns. 220; 4 Am. Dec. 339; Pollard v. Lyon, 91 U. S. 225; Young v. Cook, 124 Mass. 41; Townshend on Slander and Libel, secs. 308, 335.) Mr. Townshend says: “It [the in-
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It has been held that words like these “you swore false,” “you took a false oath,” “he swore false before Esquire Andrews,” “he swore to a lie,” will not sustain an action unless the declaration contains a colloquium showing that the words referred to a trial or other legal proceeding. (Cases cited in Pike v. Van, Wormer, 5 How. Pr. 171.) It was stated in this case that “the reason is that the words standing alone do not, as matter of law, impute a crime punishable in a temporal court. A man may swear false without having taken an oath in any court; and he ¡may swear false in a court of record, in a point not material, without incurring the penalty of perjury.” There is no hardship in requiring the plaintiff to state in his complaint those circumstances which point the meaning of the words and the intention of the speaker.
As further illustrations: “She is sick—innuendo, she has had a child”; “she is a bad girl—innuendo, a prostitute”; “he had com from B’s farm—innuendo, that he had stolen corn from B,” were held to be unwarranted, there being no inducement to support them. (Townshend on Slander and Libel, sec. 341.) The innuendo cannot perform the office of the colloquium or inducement. (Townshend on Slander and Libel, sec. 335.) It is the office of the inducement to set forth the extrinsic circumstances which, coupled with the language uttered, affects its construction and makes it actionable, where standing alone the language used would appear not to affect the plaintiff injuriously. As was said in Taverner v. Little, 5 Bing. N. C. 678: “Inducement is the statement of facts out of which the charge arises, or which are necessary or useful to make the charge intelligible.” It has been frequently held that the inducement is necessary where the language does not naturally and per se convey the
It is not material where the matters of inducement appear in the complaint—whether before or after the statement of the language published, although logically they should precede the words spoken. In the complaint before us no facts by way of inducement appear before the statement of the language used. The only allegations that cast any light upon the meaning intended to be conveyed are the following: “I have had many other occasions to have had him arrested.” As to this language none of the witnesses to whom defendant spoke testified to having heard it, and it may be dismissed from the case. The only other allegation is, “I will send him where he was another time [innuendo, state’s prison].” We cannot regard this as in any sense explaining the situation of and circumstances surrounding the parties, or as explaining what the defendant meant by saying, “if he continues to sell my hogs.” It is alleged that the hearers understood defendant to mean “steal my hogs,” hut does the complaint disclose enough extrinsic facts from which alone to warrant us in holding that the hearers had a right to put such construction on the language used, or that as matter of law his language had such meaning? We think not. It certainly cannot he the law that a defendant must answer to the charge of slander whenever, without reason, some bystander attributes to his language a meaning wholly different from the natural import of the language used. There should he sufficient inducement alleged somewhere in the complaint from which, when proven to be true, it would be fair and reasonable to say as matter of law that defendant intended in using the language to charge that the plaintiff was guilty of the crime, or the act giving rise to the alleged slander.
The language “I will send him where he was before” can by no possibility be held to mean “I will send him to state’s prison,” except it be aided by the allegation of some extrinsic facts or circumstances, and it cannot be held to cast any light upon the meaning of the word "sell” without some such explanation. The complaint is wanting in allegations of any facts or circumstances
It is manifest from the evidence as well as from the answer that the language used grew out of the relation of mortgagor and mortgagee between the parties in respect of the hogs, and from plaintiff’s having sold some of these hogs. The covert allusion to the state’s prison had reference no doubt to plaintiff’s previous commitment. But these facts and circumstances we are asked to import into the complaint by means of the innuendo alone, which we think the rules of pleading do not warrant. The witness Levy, to whom the words were spoken, testified as to defendant’s meaning: “I understood that he should not sell any hogs any more.” Q. What did you understand the words to mean: “Send him where he had been before?” “A. It means Hr. Grand had the misfortune to be in state’s prison, and he would send him there again.” “Q. What did you understand him to mean selling the hogs? A. I understand Dreyfus had a mortgage. I knew that.” He also testified that he knew plaintiff had sold some of the mortgaged hogs. “He said if he don’t stop selling these hogs; the language was addressed to me.” “The object was to warn Hr. Grand to discontinue selling hogs, that is how I understood it. I have been a sort of adviser for both of the parties. When Mr. Dreyfus spoke to me about this, made use of this language, he expected me to repeat it to Mr. Grand.” The witness Loustalot overheard some of the conversation. He testified that the word used was “sell,” but he said nothing about his knowledge of any mortgage. He had heard of plaintiff having been in state’s prison before, and hence understood the language “where he had been before” to mean I state’s prison.
The only other witness, Daguerre, except plaintiff, testified to the language used, but was not asked as to its meaning or how he understood it. Plaintiff heard the language, but immediately stepped out of hearing. He does not testify as to its meaning. I mention this evidence because it seems to me to show the wisdom of the rule as we have given it, and to show that, failing to set out some at least of the facts as inducement or averment on
The judgment should he reversed and the cause remanded.
Britt, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded.
Harrison, J., Garoutte, J., Van Fleet, J.