5 Cow. 351 | N.Y. Sup. Ct. | 1826
Lead Opinion
The words spoken are not in themselves actionable. If the action is sustainable, it must be on the ground of special damage.
It is contended on the part of the defendant, that no action can be maintained on the facts alleged in the declara
The learned Judge does not refer to any authority in support of the decision. In my view, it seems to be a departure from well established principles, applicable to this species of action.
Morris v. Langdale, (2 B. & P. 284) was cited on the argument, as supporting the doctrine laid down by Lord Ellenborough. The plaintiff in that case stated, that he was a dealer in the funds, and, as such, had been accustomed to contract; that the defendant said of him, as such dealer, !< he is a lame duckin consequence of which, divers persons refused to fulfil their contracts with him; and he was prevented from fulfilling his contracts with other persons. It was held, that it did not sufficiently appear, either that the words were spoken of lawful contracts, or that the plaintiff was a lawful dealer in the funds ; and that the declaration was therefore bad.
Part of the gravamen was, that divers persons refused to fulüi their contracts. If the test is, that the special damage must be the legal and natural consequence of the words spoken; and that the plaintiff is not entitled to recover because he had a right of action on his contract, it is surprising that this ground had not been taken by the counsel who argued. But it is not even suggested. The opinion of
Most, if not all the cases, for loss of marriage, to be met with in the -books, allege a communication or treaty of marriage only; and that the marriage, was lost by reason of speaking the words. (4 Co. 17. Cro. Car. 269, 322. Cro. Eliz. 787.)
By a communication, or treaty of marriage, must, I think, be understood, that the parties had contracted to marry each other. If this had not taken place, how can it be said correctly, that a marriage was lost ? In this case a valid contract of marriage is set out in the declaration. That the action can be maintained, will not be questioned if it be shown that the law has given this remedy in cases analogous and similar in principle.
It is a general rule, that where a man has a temporal loss or damage by the wrong of another, he may have an action on the case, to be repaired in damages. (1 Com. Dig. action on the case, (A) p. 178.) If a party has several remedies for the same thing, he has an election to pursue either. (Co. Litt. 145. a.) But, after having recovered satisfaction for the injury from one person, he cannot afterwards proceed against any other person for a further satisfacticn (3 Burr. 1354.)
If then, the principle recognized in Bird v. Randall, would authorize a recovery, when there was a contract for service, upon which damages might be recovered, I think it will apply with greater force when there has been a con
But there are other cases which rest on the same principle. If one slanders my title, whereby I am wrongfully disturbed in my possession, though I have a remedy against the disturber, yet I may have an action against him that caused the disturbance. (1 Bac. tit. action on the case, p. 98. Aleyn, 3.) This is equally against the doctrine of Lord Ellenborough; for here damages are given, which were caused by the tortious act of a third person. Again, in the action for enticing away another’s servant, the servant is always liable ; and yet the law is well settled, that the seducer is also liable. (2 Ld. Raym. 1116. Hart v. Aldridge, Cowp. 54. Reeve’s Dom. Rel. 376. 4 Bac. Abr. 593.)
The doctrine contended for, strikes at the root of society; and, in my view, overturns some of the well settled and revered principles of the common law. I cannot, therefore, doubt that the declaration contains a good cause of action ; and that the motion in arrest of judgment should be denied.
The next question is, whether there is ground for a new trial. The plaintiff proved the speaking of the words; and there existed a contract of marriage between Parkman Baker and the plaintiff. This was proved by the admissions and confessions of the defendant. He confessed, that the day had been fixed for their marriage. The marriage was broken off. It is proven that the defendant admitted he had told P. Baker these things, (meaning his pretended illicit intercourse with the plaintiff,) and that he had once pre
The inference from all this is, not only that he once prevented it by his slanders, which is enough to maintain the action but that he entirely frustrated the marriage. The facts offered to be proved by Halsey Phelps, so far as respects Parkman Baker, were not offered as confirmatory of the evidence given by him; nor to show that he had made declarations consistent with what he had sworn. The offer was to prove a conversation between two persons not parties to the suit, to make out a fact; that P. Baker was not influenced by his father’s slanders ; but the offer went to tvhat Phelps had told P. Baker, as well as what P. Baker had told the witness. As to the declarations of Phelps, they were clearly inadmissible. When the Judge rejected the evidence offered as one connected proposition, if the defendant intended, or wished to prove P. Baker’s declarations to Phelps, as showing the consistency of his evidence, it was the duty of the counsel to offer it in that light, and with that view. The language of the Judge must have been, that he could not admit a conversation between two persons, not parties to the action, to be given in evidence. It is manifest, the defendant did not wish to give in evidence P. Baker’s declarations unaccompanied with what Phelps told him. If the latter was not admissible, then the evidence offered was rightly rejected. The credibility of Parkman Baker was a question for the jury to decide. From the facts in the case, they were fully warranted in disregarding his testimony. The damages, although liberal, are not so extravagant as to require the interposition of the court. There are no grounds to believe the jury were influenced by passion, prejudice or partiality. The motion for a new trial must be denied.
Dissenting Opinion
Two motions are made in this case: 1. In arrest; 2. For a new trial.
To determine the first question we must examine the declaration, to ascertain whether it contains any cause of action. The first count states, that at and previous to the
The second count is substantially like the first, varying the words.
The words spoken are not actionable in themselves, and it is only on account of the special damage, that the plaintiff can expect to recover.
It is contended, that as she has averred a contract of marriage with Parkman Baker, her remedy is on that contract ; that the injury complained of was the consequence, of an illegal act of a third person, for which the defendant is not answerable.
To support this position, we are referred to several cases, some of which I will briefly state.
In the case of Morris v. Langdale, (2 B. & P. 283,) the plaintiff being a dealer in stocks, the defendant said of him that he was a “ lame duck,” meaning that he had not ful filled his contracts in respect of the stocks or funds. The special damage alleged was, that he lost great gains which he would have acquired by the fulfilment of his contracts; and others refused to fulfil their contracts with him, or to have any further dealings with him. Lord Eldon, in giving the opinion of the court, says, “ a great part of the special damage consists in an allegation that other persons did not perform their contracts with him. Now, if the plaintiff has sustained any damage in consequence of the refusal of any persons to perform their lawful contracts with him, it is damage which may be compensated in actions brought by the plaintiff against those persons; and the law supposes that in such actions the plaintiff would receive a full indemnity.”
The case of Vicars v. Wilcocks, (8 East, 1,) was an action of slander showing special damage. On the trial, it ? ->
Several cases are cited to show, that when the plaintiff has recovered for loss of marriage, no contract of marriage is stated, but merely a communication of marriage. Such is the report of Anne Davis’ case, (4 Rep. 17.) So also in Holwood v. Hopkins, (Cro. Eliz. 787,) though there the action did not lie, as the words were not spoken to the person who was in communication of marriage with the plaintiff, but to a third person; and so the damage was collateral; and no action would lie. (Williams v. Linford, 2 Leon, 111, contra, as to slander of title.) The same mode of stating the communication of the intended marriage is found in Cro. Jac. 162-3, and Cro. Car. 269.
On the other side, the case of Bird v. Randall, (3 Burr. 1346,) is relied on, to show that a person who seduces another to violate his contract, is liable; unless he who has violated his contract has made compensation. ■ In that case, Bird had covenanted with one Burford, by which
The case itself is as follows : “Newman sued Zacharay who was the plaintiff’s shepherd, in an action on the case; for that two of his (the plaintiff’s) sheep did estray, one of which being "found again, the defendant affirmed to be the plaintiff’s; whereupon, the plaintiff paid for the feeding of it, and caused it to be shorn and marked with his own mark; and yet, afterwards, the defendant contriving to disgrace the plaintiff, and knowing the said sheep to be the plaintiff’s, falsely and fraudulently affirmed to the bailiff of the manor, that had waifs and strays belonging to it, that this sheep was an estray; whereupon, the bailiff seized it, to his damage, <fec. And after verdict for plaintiff, Latch moved that there was no cause of action; for there is no breach of trust in the defendant, as shepherd; and his words cannot endamage the plaintiff; for he shall have his remedy against the bailiff of the manor that seized the sheep wrongfully. But it was adjudged that the action would lie; because the defendant, by his false practice, hath created a trouble, disgrace and damage to the plaintiff; and though the plaintiff have cause of action against the bailiff, yet this will not take off his action against the defendant in respect oí the trouble and charge that he must undergo, in the recovery against the'bailiff"; and Hale said, that if one slander my title, whereby I am wrongfully disturbed in my possession, though I have remedy against the trespasser, I shall have an action against him that caused the disturbance.”
The case of Bird v. Randall, decides that the party inducing another to violate his engagement, is responsible, hi case the injured party has not already received satisfaction for the injury, from the party breaking his engagement.
The case of Newman v. Zacharay, holds the person causing the illegal act, responsible at all events.
I am inclined to follow the first two cases, as they were both actions for defamation, alleging special damage. The others were not; though they were all actions on the case sounding in tort. This -court too, in Butler v. Kent, adopt the principle of Vicars v. Wilcocks, so far as to decide, “ that in cases of torts, it is necessary to show that the particular damage in respect of which the plaintiff proceeds, must be the legal and natural consequence of the wrongful acts imputed to the defendant.”
The principle established by these cases seems to be this: that every one who enters into a contract with another, looks to the responsibility of the contractor; to fulfil the contract, or pay the damages arising from a refusal to perform ; and that no action lies against a third person, who by slanderous words, not actionable in themselves, induces the contractor to violate his contract. If I am correct in this proposition, it necessarily follows, that no action lies against a person for inducing another by such means, to violate a marriage contract. Hence it results, that the declaration, in this case contains no cause of action; and the judgment must be arrested.
But as I may be incorrect, in my notions on this point, I proceed to examine the other points in the case. And
The first witness proves, that the defendant said he had at a certain time, prevented the marriage ; but was apprehensive, the plaintiff and his son had then gone off to get married; and wanted to find his son, still to prevent the marriage. He then gave, as a reason, the girl’s depravity, which he personally knew. By this witness, it appeared the defendant was alarmed for the fate of his son, who was still a minor. He said he had told his son of his own familiarity with the girl.
The second witness, Sloan, testified to a conversation with Parkman Baker; and was permitted to relate what P. B. had told him as to the declarations of the defendant. This was clearly irregular and improper; but if to be considered evidence, shows that Parkman did not believe what his father had told him about the plaintiff; and he was still determined to marry her.
The defendant proved by P. B. that he was not prevented from marrying the plaintiff by any thing the defendant had said ; but because the plaintiff had confessed to him, that she had been intimate with other men.
Parkman Baker was then attacked and supported by witnesses as to his general character; and it appeared that he had related the story differently, to other persons, from what he had testified.
The defendant then offered to prove what had passed between P. B. and one Halsey Phelps, to show that he (P. B.) did not break his engagement, in consequence of what his father had said. This was overruled, and I think properly.
In my opinion, however, a new trial should be granted; as the judge admitted improper testimony; the declarations of Parkman Baker, before he was sworn as a witness. These were given in evidence to support the action ; not to impeach the witness. The damages are certainly excessive ; but courts do not lightly interfere on that ground v* actions sounding in tort.
Motions denied,
