Hallock v. Miller

2 Barb. 630 | N.Y. Sup. Ct. | 1848

By the Court, Paige, J.

The evidence that persons, not mentioned in the declaration, had refused to patronize plaintiff’s tavern, in consequence of the speaking of the words by the defendant, was clearly inadmissible. The plaintiff could not prove that any persons, not named in his declaration, left off stopping at his house, in consequence of the words spoken. The rule is so laid down in 2 Phil. Ev. 248, and in Hartley v. Herring, (8 Term Rep. 133.) In Hartley v. Herring Lord Kenyon says, that a plaintiff who brings an action for slander, by which he lost his customers in trade, ought, in his declaration, to state the names of those customers, in order that the defendant may be enabled to meet the charge if it be false. And it seems that the persons who left off dealing with the plaintiff, were the proper witnesses of the fact, and that their declarations could not be proved. (Tilk v. Parsons, 2 Carr. Payne, 201.) The nonsuit was granted upon the ground that the special damage proved was not wholly attributable to the words spoken by the defendant, but only partly to such words and partly to words spoken by other persons.

No evidence in an action of slander can be received of any loss or injury which the plaintiff has sustained by the speaking of the words, unless it be specially stated in the declaration. (2 Phil. Ev. 248. Herrick v. Lapham, 10 John. 281.) The object of this rule is to prevent the defendant’s being taken by surprise. (1 Hall’s Super. Ct. Rep. 412, per Ch. Jus. Jones.) And the rule applies equally to the case where the special damage is the gist of the action, and where the words are actionable per se. (Per Oakley, J. Id. 419. 1 Saund. 243, b. N. S.) Where the words are not actionable per se, the plaintiff, to recover, must not only state in his declaration special damage, as the result of the speaking of the words, but he must prove that the special damage alleged was wholly and exclusively the consequence of the words. In Beach v. Ranney, (2 Hill, 314,) Bronson, C. J. says, “ the damage must be the natural and immediate consequence of the speaking of the words.” In Kean v. Wilcocks, (8 East, 3,) Lord Ellenborough indicates the opinion, that the spedaJLdam^gp; must proceed wholly from the words spoken. And he held, in that Case, that where there j was a concurrent cause of the injury, the action could not be , sustained. The same opinion is expressed by Mr. Justice ¡ Beardsley, in 3 Denio, 352. The defendant is not responsible ^ for a greater measure of damages than flows necessarily from his wrongful acts. (Ward v. Weeks, 7 Bing. 211, per Tindall, C. J.) I think, therefore, that the plaintiff was properly nonsuited.

I am also inclined to the opinion that the words uttered by the defendant were not actionable, although accompanied by special damage. The words do not import either an illegal or immoral act. If the words had been written and published, I question whether an action of libel could have been sustained. It would have been difficult to make out that such writing came within the definition of a libel. It certainly would not have been a censorious or ridiculing writing, tending to blacken the reputation of the plaintiff, or to expose him to public hatred, contertipt or ridicule. It cannot be maintained that an action of slander will lie for speaking words, which charge an act both legal and praiseworthy, although a loss or injury may be the consequence of the words.

The motion to set aside the nonsuit must be denied.