Wilcox v. Moon, 63 Vt. 481

63 Vt. 481 | Vt. | 1891

The opinion of the court was delivered by

MUNSON, J.

It is true that a communication to the plaintiff wife by a letter so transmitted as not to be seen by others would not be such a publication as would sustain an action. Town. Sland. §95, ,1 Am. Lead. Cas. 115. It is claimed in support of the demurrer that nothing but a communication to Mrs. Wilcox is alleged. It is said that the declaration merely avers that the defendant did “ compose and publish,” without stating the manner of publication; and that the form of the libelous matter shows that it was addressed to Mrs. Wilcox herself. But it does not necessarily follow from the form of the libel that it was sent to her as a letter, and so sent as to be seen only by her. If in fact sent to her, it may have been sent in such a manner that the transmission itself would .have been a publication to others. It may not have been communicated to her in any way, but have been privately shown to the writer’s friends. Political invectives containing libelous matter have sometimes been put in, the form of a letter addressed to the person assailed, and inserted in the public press. We have then, in this defamatory matter, a form of words which, while ordinarily indicating a communication confined to the person addressed, is entirely consistent with a different use. And these words are introduced by the usual averment that the defendant “ did compose and publish.” We apprehend that the force of this allegation,is not so controlled by the language set forth as to require any further averment. The word “publish” in itself imports that communication to others which is essential to the tort. We think the demurrer to this declaration admits an actionable publication. Town. Sland. § § 324, 325.

It is urged that inasmuch as the crime imputed does not directly appear from the language charged, the declaration is fatally defective for the want of the usual averment that the defendant intended to cause it to be believed that the plaintiff was guilty of the offense pointed out by the innuendo. Hoar v. Ward, 47 Vt., 657, is cited in support of this position. That was an action for slander in charging the plaintiff with the commission of a crime. Neither the introductory part of the declaration nor the innuendo pointed out the particular crime intended, and the court considered that the averments did not impute crime to the plaintiff with sufficient certainty. In this connection Redfield J. speaks of the duty of the pleader to aver in the prefatory part of the declaration the crime intended to be imputed, and in the innuendo the crime insinuated. But this can hardly be accounted an assertion that a prefatory averment touching the defendant’s intention is essential; and we think the usual allegation of the defendant’s intention to cause a certain belief, is not required. A person is responsible for the natural effect of his words, in the sense in which they were used, without regard to what he intended their effect should be; and we know of no technical rule which requires the allegation of an intent which is not a necessary element of the tort. "When the defamatory words, alone or in connection with the explanatory facts appearing from the antecedent averments and colloquium, are such as to support the innuendo, and the words are found to have been used in the sense there ascribed, nothing further can be required in this regard, either by way of averment or proof.

It is also urged, in view of the holding in Merritt v. Dearth, 48 Vt. 65, that the language charged must be .taken in its most innocent sense, in the absence of any averment or colloquium to give it another meaning. In the case cited, the word “intercourse ” was used without any connecting words indicating the sense in which it was spoken, and the court held that in the absence of any prefatory averment as to the occasion or manner of its use to give it a sinister meaning, it must be taken to have been used in its more innocent sense. But in this case the defamatory matter taken together fairly indicates the use of the word “intimate” in a criminal sense, and the language is therefore legally susceptible of the meaning ascribed to it by the innuendo, without further aid than the prefatory averment showing the relations of the parties. The declaration is therefore sufficient on general demurrer, as the words must be taken to have been used in the sense alleged. Sheridan v. Sheridan, 58 Vt. 504; Royce v. Maloney, 57 Vt. 325; Wilcox v. Moon, 61 Vt. 484.

No other points in support of the demurrer have been made by counsel.

Judgment reversed pro forma, cmd cause remanded with leave to replead.