Hoyt v. Smith

| Vt. | Aug 15, 1859

Barrett, ,L

This is an action of slander which was tried in the county court upon the general issue, and notice of the truth of the words in justification. The plaintiff obtained a verdict. The questions before us arise under a motion in arrest, for the alleged insufficiency of the declaration.

For the purpose of a point the defendant claims that the declaration sets forth, as a caus'e of action and ground of recovery, written libels, as well as verbal slanders. However this might 'seem upon a first impression, an .attentive examination satisfies us that such is not the case.

The idea of the pleader seems to have been that it was proper, and perhaps necessary, as a part of the preliminary averments, in prder to devolope the subject matter and occasion of the alleged slander, to set forth what had been done by the defendant by way of starting and giving currency to the pretence that he had deposited such a letter, with the money and stamps, in the plaintiff’s -post office, in connection with circumstances and incidents calculated to beget the suspicion, and perhaps the belief, that the plaintiff had kept the letter and stolen the money and stamps. This is evinced' by the manner in Which that matter is incorporated into the declaration, “ that the defendant on or about the 9th day of January, 1857, communicated and published in writing to Ephraim Nois, the following false intelligence.” Then follows the letter in words, to the effect that the defendant put the letter in the office with the money and stamps enclosed, but without any statement or insinuation that the plaintiff had kept the letter and stolen its contents. The declaration contains no innuendo that by said letter to Nois the defendant meant to charge or insinuate that the plaintiff had kept the letter and stolen the contents.

The declaration then proceeds thus,- “and before the committing the several grievances hereinafter mentioned, the defendant did, on or about the 13th day of February, 1857, further publish and declare in a letter directed to Guyer, among other things, the 'following false intelligence in writing,” etc., and then gives the said letter iu words, which in effect states the particulars of the defendant’s mailing the letter with the money and stamps enclosed to Nois, with incidents and circumstances, and particularly the receiving of a dun from Nois, and closes by saying, “ I then began to have suspicion that- Mr. Hoyt- had taken the letter containing the stamps and money aforesaid.” This statement of suspicion is the only thing in the letter to Guyer that looks in the direction of charging the plaintiff with having 'taken the money; and the declaration contains no immepdo that the defendant meant, in that letter, to charge the plaintiff with having so done; but on the contrary, it proceeds, “which letter in Writing, containing said false and deceitful intelligence, was received by said Guyer as if true, the defendant well knowing the same to be untrue and false, .nevertheless the defendant further intending, etc.,” and then sets forth the speaking of the slanderous words, with proper colloquium and innuendoes. From this manner of passing from the statements as to said two letters to the setting forth of the verbal slander, it is apparent that those statements were designed and understood to be merely preliminary and introductory to the counting upon the verbal slander. This view is strongly countenanced by the omission ih those statements of material elements that are indispensable in a count for libel, as well as by other internal evidence which the declaration contains.

Assuming that the declaration counts upon verbal slander only, it has been made a question, about which even counsel on the same side do not agree, whether it is a declaration in one, two, or three counts. We do not regard it of much importance, for the purposes of the present decision, which view should be adopted, for we understand it to be proper to include in a single count, words spoken at different times, and to different persons, in relation to the same subject, as well as to make several counts, each containing the words spoken on a single occesion; 1 Starkie on Sland. 443, Wend. Ed.

In case of a single count containing words spoken on different occasions, some of which are 'not actionable, if entire damages should be given upon the whole count, judgment would be arrested with as much certainty, at least, as it would be if the declaration had contained a distinct count for each set of words, and entire damage should be given. See Starkie ubi supra.

If we felt compelled to hold that there are more than one count in the declaration, we should be strongly inclined to there being three instead of two. But we see no occasion so to hold. We are able, with great satisfaction, to agree with the author and draughtsman of the declaration in what he claims for his own handiwork, that it is a declaration in a single count, for words spoken on several occasions.

If these views were to be adopted by the court, no question was made but that the preliminary averments are sufficient.

The next- topic of debate is, whether the slander is sufficiently averred-.

In the first place, as to the first and second averments of the slander, the sufficiency of the colloquium is not questioned. In the next place, it is not denied that the words counted upon are capable of importing a charge of stealing the money and postage stamps, nor that the innuendoes make a proper application of these words in the direction of such a charge ; but it is claimed that the innuendoes are not sufficiently direct and explicit to that effect.

In the first averment of slander the innuendo proceeds thus ; “ meaning and intending to insinuate that said Hoyt had withheld the letter and feloniously taken the money therefrom, and had committed the crime of larceny,” and closes thus: “moaning and intending to insinuate and falsely represent, etc., that said Hoyt had stolen the same [the money] and was liable therefor, etc.”

The second averment of slander closes by way of innuendo thus: “meaning to insinuate and be understood that said Hoyt had stolen said letter, money and postage stamps, and thereby was guilty of felony, meaning and intending to charge him, the said plaintiff, with such crime.” The third averment of slander-closes by way of innuendo thus : “ meaning and intending to represent that said Hoyt had stolen the money before mentioned, etc.”

We do not regard the criticism made by counsel to be warranted by the rules of construction, applicable to a declaration, after a verdict, under a motion in arrest; nor, indeed, to be very fully sustained by the ordinary rules of grammar. In our view the expression is tantamount to saying that the defendant meant, by the words spoken, that the plaintiff was guilty of the crime of larceny, and that he intended so to insinuate, represent and have it understood. What is thus said about insinuating and representing does not operate to bliut and round off the point of a direct averment of slander, but to carry forward the charge meant by the defendant into its virulent operation of insinuating and causing it to be understood that the plaintiff was, in fact, guilty of that henious crime.

But it is further objected that the third averment is defective in not having a proper colloquium; that it does not show that the words were spoken of and concerning the plaintiff, but only of and concerning tlié letter and money. Without taking timé to discuss this objection, as it would stand if it had been raised by a'demurrer, it is sufficient to say that the case is before us on the whole record. That record contains the defendant’s notice of special justification, which is used as a substitute for a technical plea. What it sets forth or admits, must, as a part of the record, be as effectual against the defendant as if it had been done in the form of a plea. That notice sets forth and admits the speaking of the words, and that they were spoken of and concerning the plaintiff; Upon a very familiar rule, this supplies any omission in this respect in the declaration; Wood v. Scott 13 Vt. 42" court="Vt." date_filed="1841-01-15" href="https://app.midpage.ai/document/wood-v-cott-6572413?utm_source=webapp" opinion_id="6572413">13 Vt. 42; Sanderson v. Hubbard, 14 Vt. 462" court="Vt." date_filed="1842-03-15" href="https://app.midpage.ai/document/sanderson-v-hubbard-6572638?utm_source=webapp" opinion_id="6572638">14 Vt. 462 ; 1 Ch. Pl. 671.

Only a single other objection remains to be noticed, viz : that the slander is averred to be of the plaintiff in his official charac*ter as postmaster, and so the words become actionable only by reason of special damage, yet only general damage is averred:

We deem this objection to be unfounded. The declaration, in the colloquium, states the speaking to have been of and concerning the plaintiff, not in his office of postmaster, but personally, as a member of the community. What is said about his being postmaster is in the preliminary averments, and was inserted for the purpose of showing the plaintiff’s relation to the subject matter and occasion of the slander» As the words are abundantly actionable when spoken of one personally, in his private character and relations, it is needless to discuss whether they would be any the less so if spoken of a person in his official character and relations.

While we may not participate in the favor with which the author of this declaration regards it, so far as to feel warranted in 'commending it for study and adoption, as a model of artistic perfection; still, -We think that by the rules of the law it must be held to have abundant substance and sufficient form to entitle it to sustain the verdict, as against the motion in arrest:

The judgment is affirmed;