16 La. 395 | La. | 1840
Lead Opinion
The members of the court do not appear to differ materially upon any part of this case, except as to the propriety of the last part of the charge given to the jury, to wit: “ that the words are to be understood in their common
If this part of the charge were to be tested by the common law, it is probable it would be found inaccurate and loose. None of us suppose that we are bound by the technical and artificial rules of the common law of slander, but when our , law is silent, it is supposed that we may resort to a foreign system for a rule, if that rule be consonant to reason and e(lu’fy> I ara by n0 meaas prepared to adopt from the common law the distinction between words which are actionable in themselves, and words which are not; and to say that a pHintiff is not entitled to' recover in an action of slander, unless charged with an indictable offence without proof of special damages. In the present case, the latter part of the judge’s charge was perhaps uncalled for, because the words alleged to have been uttered, might well be found by the jury to amount in a popular sense to a charge of perjury, an mdicta^e °ffencej and, consequently, it was not important to inquire what would be the law of the case if the charge had ° only amounted to one of moral turpitude. And yet it may be said that, under the charge of the court, the jury might go beyond the inquiry, whether the words in a popular sense J 1 J , r * imported a charge of an indictable offence, and say that they a<- least imputed great moral turpitude, for it cannot be ¿[oukte(j but that it is highly immoral to swear falseljq even in an affidavit, not connected with any judicial proceedings. I am disposed, therefore, to look at the charge in that point of view, and while we all agree that the judge acted correctly in refusing to charge in the main as prayed by the defendant’s counsel, my opinion is, that he did not 'err in charging as above stated. I'concur with the judge of the District Court in his view of the law. I should, however, be disposed to reconsider my opinion, if upon inquiry I should be satisfied that this court in its previous decisions, had sanctioned a contrary doctrine. But it does not appear to me to have done so, either expressly, on a point directly before it, or by necessary iinpli
I am of opinion, therefore, that the judgment first pronounced, remain undisturbed.
Concurrence Opinion
I concur also in opinion with judge Bullard, and think that the former judgment of this court ought to remain undisturbed.
Agreeing fully with the majority of the court in the opinion that the judgment heretofore given should remain undisturbed, I shall in giving my reasons, briefly review the previous decisions of the court, and, I think, can show the opinion of the majority does not impugn or overrule any of them.
After the adoption of the Louisiana Code, and the repeal by the legislature of the ancient laws, there were not a few lawyers who doubted whether in such actions as slander, and some others sounding in damages, it was not necessary to prove the damages before a party could recover, but the better and more general opinion now prevails, that under the articles 2294, 2295 and 1928, they can be maintained. If that is correct, and the action of this court, the general assent of legal men, and my own convictions induce me to believe it
In actions of slander, I am not an advocate for establishing any particular standard by which words are to be judged as being actionable or not actionable. I am willing to leave every case to be decided on its merits and peculiar circumstances, under the broad principles laid down in the Code, which are very similar to the laws in force previous to its adoption. Partidas 3, tit. 2, l. 31. But, if any such standard is to be adopted, I ¿object most strongly to that established by the common law, that no words are actionable, and subject a party to damages without special proof, but such as impute an indictable offence, or injure a man in his profession. I believe an action of slander can be, and ought sometimes to be maintained, for words which do not charge an offence that will subject the party to indictment. For instance, to charge a virtuous woman with a want of chastity. On the other hand, there are words which impute indictable offences that would not, in my estimation sustain an action for slander: As to say of a man, he was guilty of an assault
The few cases of slander that have come before this court, cannot have established any particular system of jurisprudence or standard, as to words that are actionable in themselves or not, and if any is to be established, I prefer it should be effected by a series of decisions, than by laying down a general rule. The rule of the common law is in some respects absurd, in others positively unjust, and was established for the double purpose of repressing frivolous actions, and saving the judges the trouble of trying cases.
The case of Moore vs. Stokes, 6 Martin, N. S., 538, as I understand it, decides nothing more than when the question is, to what weight testimony is entitled, the Supreme Court will respect the conclusions of the jury.
In the case of Stackpole vs. Hennen, 6 Idem., 481, the question was, whether the action could be maintained against the defendant, because he was a lawyer, and used the words in defending his client.
The case of Wamack vs. Kemp, 6 Idem., 477, I do not understand as recognizing any such rule as is contended for by the counsel for the defendant in this suit. From reading the statement of the case, a conclusion of that kind might be supposed, but the opinion of the court does not to my mind sustain it. The action was one for slander and false imprisonment: the count for slander was dismissed, because “the charge of perjury was made in a legal proceeding, with a view to bring the plaintiff to justice.” (The report says defendant, but plaintiff was evidently intended;) and nothing showed malice in the defendant. The action of false imprisonment was dismissed, because the “plaintiff suffered in consequence of the ignorance of the magistrate, who ought neither to have arrested or confined him.” I do not understand that the question was raised in that case, whether a charge of perjury committed in a voluntary affidavit, would sustain an action for slander. The court says, “it is true the plaintiff did take the oath by which he was charged with perjury, in a voluntary affidavit, neither, taken or intended to
The case of Stewart vs. Carlin, 2 Louisiana Reports, 73, does not, in my opinion, recognize the doctrine of words actionable in themselves or not. The point was not made or argued. The counsel for the defendant in that case, denied there was any such action as one for slander, since the repeal of the ancient laws, and the argument and decision of the court was upon that question. If there is any thing else in that case, it is a dictum upon points not made.
In the case of Trimble vs. Moore, 2 Idem., 577, the principal point was, whether the words had been substantially proved. The other point I remember was discussed in the course of the argument, but not decided. The doctrine laid down in that case, as far as it goes, is correct, and supports the charge of the district judge in the present.
This court in the case of Cauchoix vs. Dupuy et al., 3 Idem., 206, held, that damages could be recovered for saying the plaintiff was a man of color. These words . charged no indictable offence or moral turpitude. The effect was, to exclude the plaintiff from association with a certain portion of the community, and if true, to deprive him of the rights and privileges of a white man, under our constitution and laws.
In concurring with the majority of the court, I repeat my conviction, that no decision heretofore solemnly made, has been impeached or overruled. We are only carrying out to their legitimate results, the doctrines laid down in the cases of Trimble vs. Moore and Cauchoix vs. Dupuy et al., and
Dissenting Opinion
dissenting.
This is an action of slander, and the words charged are, that he (plaintiff) “was a rascal, and had sworn falsely, and that he (defendant) had the documents to show for it.” There was a verdict and judgment for the plaintiff, and the defendant appealed.
If the case was before this court on the merits, I should have no objection to the affirmance of the judgment. But the attention of the court has been called to a bill of exceptions taken to the refusal of the judge to charge the jury as he was requested to do by the defendant’s counsel, and also, to the charge which he gave. I am of opinion that the first part of the charge given, as far as the judge ought to have gone, is substantially that which was'called for, and that the alteration he made in the form is correct.
The first part of the charge is in the following words: “ If you consider the words spoken, in a popular sense, conveyed the idea that he committed a legal crime, you will find for the plaintiff such indemnity as, in your sound discretion, ought to be given according to the injury done to the plaintiff in his feelings or calling.”
This part of the charge appears to me in perfect conformity with the principles established by the decisions of this court.'
In the case of Stewart vs. Carlin, 2 Louisiana Reports, 73, the court took the position that in actions of slander there are words for which damages will be given, although none were proved to have resulted from them ; id est, words actionable in themselves, from which it follows, as a corollary, that there are others for which no damages will be given, unless some are proved to have resulted from them ; id est, words not actionable in themselves. The court in that case said, “in actions of slander the court or jury must, in many
In the case of Moore vs. Stokes, 6 Martin, N. S., 538, the same principle was recognized ; “ the defendant having charged the plaintiff with having sworn to a lie, in open court, in a suit in which the then defendant was plaintiff.”
In the case also of Stackpole vs. Hennen, 6 Idem, N. S., 481, the charge was, that the defendant being of counsel in a suit in which the plaintiff was a witness, said that the latter had perjured himself, and had come into court with the intention of doing so. The plaintiff had a judgment which was reversed on appeal, and judgment of nonsuit entered, on the ground that counsel are not responsible for statements made by them if they are pertinent to the cause, and the counsel is instructed by his client to make them.
In several other cases this court has held that a charge of perjury supports an action of slander.
In the case of Trimble vs. Moore, 2 Louisiana Reports, 577, the defendant having charged the plaintiff “ with having stolen three hundred dollars in money and notes, and having run away ; ” and the proof being that he “ had taken from defendant’s store to the amount of two or three hundred dollars in money and notes, and had run away with them,” the court held that the charge was supported and entitled the plaintiff to his action.
Swearing falsely in one of those voluntary affidavits, which religion forbids, and the law discourages and disregards, was considered by this court in the case of Wamack vs. Kemp, 6 Martin, N. S., 477, as an offence, the charge of which did not support an action of slander, unless damages were proved. The accusation there was, “that-the defendant charged the plaintiff in an affidavit with the crime of perjury, and at different times and places told, in the hearing of many persons, that the plaintiff had been guilty of perjury;” there was a verdict and judgment for the plaintiff, and on appeal
In this case the petition contained two distinct counts: One of them on a written charge of perjury in an affidavit, and the other oral, charging the same crime in the hearing of several persons. This court was of opinion that the first charge having been made in a legal proceeding, with a view of bringing the plaintiff to justice, was not actionable. As to the oral charge the evidence disclosed that the swearing was not in a legal proceeding, but in a voluntary affidavit. The case was this: The plaintiff for some unknown cause made oath before a magistrate, “ that he had never invaded the marital rights of the defendant.” This court expressed the opinion that the plaintiff having taken the oath in a voluntary affidavit, neither taken or intended to be used in a legal proceeding, the judgment against him must be set aside.
These cases fully support the part of the judge’s charge under consideration. He added “that he was not prepared to say that mere words of heat, such as that another is a rascal, ought to occasion damages,” “unless he shows he was injured by being deprived of his employment.” The defendant’s counsel has complained of this portion of the charge. He has urged that the words are not actionable at all; even, with proof of special damage. That they are words of heat and passion; the privilege of the vulgar; having no deter minate meaning, calculated only to manifest the ill humor of him who utters them, without fixing any positive stigma on the person to whom they are applied. The counsel has adduced, to maintain his position, numerous authorities from the decisions of the courts of the other states of the Union, and of England. As special damages are not alleged in the petition, the defendant cannot be injured by the opinion expressed in the charge of the judge a quo, because it is favorable to him. I, therefore, think that this court is not called on, in the decision of this case, to say whether, in our jurisprudence, there are words not actionable even when damages are shown.
This part of the charge appears to me absolutely useless, and inconsistent with what the judge had said before. He had expressed his opinion upon all the charges in the petition ; that of forswearing, and that of calling the plaintiff a rascal. There was nothing before the court to which this last part of the charge is applicable.
He had said that a charge of false swearing was not actionable without damage being shown, unless the false swearing constituted a legal crime; id est, perjury, or a false oath taken in a judicial proceeding, knowingly, in a matter material to the issue. This was negativing the idea that the moral offence of false swearing, in a voluntary affidavit, not taken or intended to be used in a legal proceeding, was one, the malicious charge of which was actionable. Such a moral offence certainly constituted moral turpitude.
The charge appears to be too vague and loose ; the words moral turpitude, too general: Pothier says, “that giving of alms is a real obligation, and the neglect of it is a high offence.” Further, “ that he who has received a signal benefit is obliged to render his benefactor all his services, in his power, when occasion offers for his doing so, and it is sinful and dishonorable to neglect it.” (Obligations No. 1.)
Thus, moral turpitude is the breach of the duties of charity and gratitude, and our learned brother of the District Court certainly did not mean to say, as his charge implies, that words charging a man with want of gratitude were actionable, without any damage being shown.
The article of the Decalogue says, “ swear not at all.” It has been generally and almost universally believed that, the prohibition does not extend to oaths required or authorized by law; the taking any other is a disregard of God’s command, even, when the matter sworn to is true, and an
It is meet that while we administer justice to the parties who litigate their rights in this court, the rest of the community may, as much as possible find in our judgments a fixed and certain rule on which they may rest assured that, in future, similar cases will be decided.
My humble efforts have been united with those of my former colleagues, and we have concurred with great unanimity in a number of decisions which form an almost complete system of jurisprudence in regard to the action of slander. In most of these cases I had the honor of being the organ of the court. I am not dissatisfied with the decisions given in any of them, and I regret, that a portion of the charge of the judge a quo, in the present case, is about to overthrow the established system, and leave the people of the state without any rule or guide in the action of slander; and the opinion of the jury, unaided and uncontrolled by the courts, is to be the sole criterion and standard of their rights.
I conclude, that we ought to reverse the judgment of the court, set the verdict aside, and direct the case to be remanded, with directions to the judge a quo, to abstain from instructing the jury “that if the words charged the plaintiff falsely and maliciously with moral turpitude, so as to injure his character and standing in society, they might find for the plaintiff, without showing any special damagesand that the plaintiff and appellee pay the costs of this appeal.
But the majority of the court being of a different opinion, it is, nevertheless, ordered and decreed, that the former judgment of this court, remain undisturbed.
Concurrence Opinion
I concur fully in opinion with judge Bullard, for the same reasons by him adduced, and conclude that the judgment first rendered, ought lo remain undisturbed.
