Hurd v. Moore

| Or. | Sep 15, 1863

Shattuck, J.

As to the first point, it is unquestionably the rule, in actions for verbal slander, that the complaint must show that the words were spoken of and concerning the plaintiff, in the presence or hearing of some person or persons ; but, in this case, we think that the terms employed by the pleader, “ conversations,” “ discourses,” “ publish,” imply the presence of hearers, and sufficiently indicate that the declarations were public and notorious. This point is not, •then, well made.

As to the second point, it was contended in the argument that the averment “ referring to a certain dwelling house ” that had “ caught fire and burned,” taken with the words charged to have been spoken, show that no arson was or could have been charged, and consequently the words spoken are not actionable; and also that the words used, taken with the averment, are capable of an innocent construction, and.therefore a slanderous meaning should not be attached to them.

It is conceded that the inuendo cannot extend or enlarge the meaning of the words charged to have been published ; but we are of the opinion that the words charged in the complaint, taken with the averment, do, of themselves, convey a clear and direct imputation of a slanderous character.

Formerly, the rule prevailed, in actions of this kind, that words are to be innocently construed if possible; but the rule is now held to be, that words are to be taken in that sense in which they are generally understood; and when that puts upon them a guilty sense, it is incumbent on the defendant to show that they were innocently used. (Pike v. Van Wormer, 6 Howard Pr. R., 101; Goodrich v. Walcott, 3 Cow., 239.)

The defendant, by failing to answer, admits all the allegations of the complaint to be true. Now the words charged are not ambiguous; there is no uncertainty in regard to the subject matter to which they relate, or the person to whom they were intended to apply. The defendant, after applying vile and opprobrious epithets to the plaintiff, indicative of bitterness and great animosity, without qualification, declared that the plaintiff was the one that “ set it on fire“ that he had burned it.” It is difficult to see how other than a guilty sense could be put upon these words so used. It is only a fair and reasonable inference, from the whole discourse charged, that the defendant intended to charge the plaintiff with having willfully and maliciously set fire to that house; that he was guilty of arson. We are, therefore, of the opinion that enough is charged in this complaint to put the defendant upon his denial, or upon the proof that the words were innocently used.

Judgment is affirmed.