25 Gratt. 495 | Va. | 1874
delivered the opinion of the court.
This is an action of slander at common law, and not under the statute, and must therefore be governed by common law rules. It lies for words which are actionable in themselves, or for those which, though not actionable in themselves, have caused some actual consequential damage, which must be alleged and proved. Words of the first description must impute guilt of some offence, for which the plaintiff, if guilty, might be indicted in the temporal courts, and punished as for an infamous crime, at least punishable with imprisonment. 2 Chit. Black., book iii, c. 8, top p. 95, side 123, note 14, and cases cited.
The words themselves may not import an imputation of crime, but spoken with reference to preexisting or extrinsic facts, as shown by the conversation or discourse of the defendant, at the time the words were spoken, do impute crime. But to be actionable, they must be shown by the averment of the extrinsic facts, and by the colloquium referring to them to impute crime, or some high misdemeanor punishable ignominiously by the temporal courts.
In Holt v. Scholefield, 6 T. R. 691, Lord C. J. Kennyon said, “Either the words themselves must be such as can only be understood in a criminal sense, or it
Let us apply these principles to the case in hand. In the first four counts the words are laid without a colloquium. In the first count they are, “Dick Stinnett killed my beef.” Innuendo, “meaning thereby that the plaintiff had killed and carried off feloniously a beef, which some person or persons had shortly before that killed and stolen from the field of the defendant.” In the second count they are, “he (meaning the plaintiff) killed the beef,” “meaning that the plaintiff had clandestinely and feloniously killed and carried off a beef belonging to her the said Ann.”
The office of the innuendo is only to ■ give the meaning of the words spoken. It cannot extend or enlarge the meaning of the words, or introduce new matter. Rex v. Howe, Cowp. R. 672; Moseley v. Moss, 6 Gratt. 534; Holt v. Scholefield, 6 T. R. 691; 4 Rob. Prac. 694-5. An innuendo cannot be given to words which they do not necessarily import, either of themselves
It is clear that the words laid in these two counts do not of themselves import an accusation of felony. “He feloniously killed and carried away my beef,” is not the necessary or natural import of the words, “He killed my beef.” It is clear that these counts are fatally defective and demurrable. And the third and fourth are obnoxious to the same objection.
The fifth count sets out a colloquium in these words: “Onthe day and year aforesaid, in the county, &e., in a certain other discourse, which the said Ann, wife of the said Hansbrough, had with divers other persons, of and concerning the said Richard, and of and concerning a certain steer or beef, the property of said Ann, which had shortly theretofore been by some person or persons, to the plaintiff unknown, feloniously killed, taken and carried away from a field belonging to the said Ann, she, the said Ann, spoke and published, in the presence and hearing of said persons, these false, malicious, scandalous and defamatory words of and concerning the plaintiff: ‘Dick Stinnett killed my beef;’ innuendo, (meaning thereby that the plaintiff had feloniously killed the steer or beef aforesaid, belonging to the said Ann, in her field). ‘He
To say that one “ killed my beef,” without an allusion to any circumstance connected with the killing, could not be construed to be a charge of felonious killing. And it may be that the beef had been feloniously killed and taken away a short time before the words were spoken, as is averred in this count, but if nothing was said about it at the time the words were spoken, or it be, not averred that she had notice of the felonious killing and taking away, or that it was so reported in the community, and known to her when she spoke the words, it would by no means be a natural or necessary conclusion, that she meant to accuse the plaintiff of felony, by merely saying “he killed the beef,” or “my beef.” It is averred that the beef had been “ feloniously killed and carried away,” but it is not averred that there was any colloquium about the felonious hilling, or that the defendant knew that it had been feloniously killed and taken away, or that it
If the accusation is not made by the words spoken, "taken in connection with the colloquium and averments, it cannot be supplied by the innuendo. For it is a clear rule of law, that the innuendo cannot introduce a meaning broader than that which the words, taken in connection with the‘averments and the colloquium, will naturally bear. Nothing, says Lord Chief Justice Ellenborough, can be more clear than the rule laid down in the books, and which has been constantly adopted in practice, not only where the words spoken do not in themselves, naturally convey the meaning imputed by the innuendo, hut also where they are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to make them actionable, it must not only be predicated that such matter existed, but also that the words were spoken .of and concerning that matter. Hawkes v. Hawkey, 8 East’s R. 427. In that case there was an averment that the defendant had put in his answer on oath, to a bill filed against him in the exchequer; and the words laid were, “I have no doubt you (meaning the plaintiff’s servant) will forswear yourself, as your master •(the plaintiff) has done before you.” There was no •colloquium that the words were spoken with reference to that answer. But there was an innuendo that the plaintiff had perjured himself in what he had sworn in the aforesaid answer. The chief justice said, “The prefatory allegation that the plaintiff’ had put in his answer on oath to a bill filed against him in the exchequer is right, but whether the words were spoken with relation to that answer, does not appear, unless after verdict it must be taken that they were so
In this case the defendant’s beef may have been killed by the plaintiff without any participation by him in taking and carrying it away. It might have been killed by him by accident, or it might have been shot by him by design as a trespasser, and others may. have feloniously taken it away. The defendant may have had good reason to believe that he killed it, whilst she had no reason to believe that he killed it animo furandi. And she only charged him with the killing. She never said that he took and carried it away, or that he feloniously killed it, so far as - it appears from this declaration. Is it right to hold her resppnsible for words which she did not utter, or for imputing a crime to the plaintiff which the words spoken do not import ? Surely not, unless it clearly appears from matter extrinsic averred, or from her discourse at the time, that the words spoken by her in that connection imputed to the plaintiff the crime. And that such imputation was made by the words spoken should clearly appear upon the record, other
The sixth count is liable to all the objections mentioned to the fifth count. The words laid are, “We have no idea that Leighton killed the beef. Mr. Garland says that Stinnett (meaning the plaintiff) came out there in the field the day before waiving a stick about, and he killed the beef.” The allegation in this count is, not that the defendant made any accusation against the plaintiff, but that she said, Mr. Garland says, &c. And the innuendo from these words is, an accusation by the defendant “that the plaintiff had been seen waiving his walking stick in the field, in which the beef was killed, the day before the killing occurred, and that the said plaintiff had feloniously killed, taken and carried away the said beef, the property of the said Ann.” The words laid in this count do not justify the inference.
The seventh count sets out the colloquium, and the averment as in the two preceding counts, and then adds, “ she, the said Ann, in order to cause the said plaintiff to be falsely suspected of committing the said felonious killing and carrying away,” spoke, &c. The declaration must show, either by the words them
After the evidence on both sides had been closed, the court allowed the plaintiff to amend his declaration by adding an eighth count. We are of opinion that the amendment was material to the merits, and therefore not allowable at that stage of the proceedings by the statute. Code of 1873, c. 173, p. 1119, sec. 7. But if it had been properly allowed, it is liable to the objections made to the fifth count.
It is proper to say that the declaration appears to have been skilfully drawn, and the defect seems to have been not in the pleader, but in the facts of the plaintiff’s case. But as it does not appear from the record that all the evidence has been certified, it may be a case for amendment upon the decision of the demurrer, and in conformity to precedents established by this court, the cause will have to be remanded, that
Other errors have been assigned. We will notice •only such as raises questions which may arise again upon another trial of the cause. As to evidence of the speaking of like words, antecedent or subsequent to the words laid in the declaration, it has been held that it is admissible upon the question of damages, but not until the words laid have been proved. Before that is done, it seems to be contrary, both to reason and authority, to admit such evidence, as it can be admitted only to affect the measure of damages.
The court can perceive no reason why a deposition, which has been read to the jury, may not be given to the jury in their retirement, if what is objectionable in it has been erased.
This court cannot review the ruling of the court of trial, upon the motion to set aside the verdict and grant a new trial, as the facts are not certified.
It does not appear from the record that the action was barred by the statute of limitations which was pleaded.
The only remaining assignment of error which we deem it necessary to notice, is that the words spoken were privileged communications, or were spoken under circumstances which rebut the imputation of malice. It is essential to all defamation, that it should he malicious. But it is an implication of law that all unauthorized defamation is malicious. There are, however, cases in which this inference of law does not arise, and where communications which would ■otherwise be defamatory, are justified by the occasion •on which they are made. In such cases express proof of malice is necessary to render the communication •defamatory. Such is the law with regard to con
But, it not being certified that the record contains all the evidence in this cause, it is not in the power of this court to decide whether the circumstances under-which the words were spoken, in this ease, rebuts the implication of malice.
The judgment of the court below must be reversed, with costs, and the verdict set aside; the demurrer to-the. declaration sustained, with leave to the plaintiff, if he desires it, to amend his declaration.
The judgment was as follows:
The court is of opinion, for reasons stated in writing and filed with the record, that the judgment of the court below, overruling the demurrer to the original and amended declarations, is erroneous. It is therefore considered that the judgment of the Circuit court of Botetourt county be reversed and annulled, and that the defendant in error do pay to the plaintiffs-in error their costs expended in the prosecution of their writ of error here; and that the cause be remanded, with instructions to the said Circuit court to-give the plaintiff' leave to withdraw his joinder in the demurrer, and to amend his declaration if he desires-to do so, and if he does not wish for such leave, to-give judgment upon the demurrer. Which is ordered-to be certified to the said Circuit court of Botetourt county.
Judgment reversed.