Barnes v. Trundy

Shepley, C. J. Certain doctrines respecting the maintenance of actions for slanderous words Spoken, may be regarded as so fully established as to preclude further debate or controversy. Words in themselves actionable must charge some punishable offence, impute some disgraceful disease, or be spoken of the person in relation to some profession, occupation, or official station in which he was employed. Words in themselves not actionable may be the foundation of an action by reason of some special damage occasioned by them. To maintain an action on the ground that words spoken of a person with reference to his profession or occupation, are in themselves actionable, the declaration must contain a distinct averment, that the words were spoken of and concerning the plaintiff, and of and concerning his profession or occupation. The propriety and necessity for such a rule of law, may be tested by a single example. One person speaking of another says, he is dishonest and roguish. Such words will not be [324] actionable in themselves merely, because the person spoken of happens to be a lawyer or a trader. To make them actionable they must appear to have been spoken of him as a lawyer or trader, and without a distinct averment in the declaration, that they were so spoken, no pause of action is set forth in it. In the case of Bloss v. Tobey, 2 Pick. 320, after much research, it was said, examples are too numerous in the books of pleading to make it necessary to quote any of them. When words in themselves not actionable become so by reason of some special damage, occasioned by them, such special damage must be particularly averred in the delaration, and it must be proved as laid. Cases to prove this are too numerous to be cited. Let these rules be applied to the present case. The second count contains a colloquium stating, that the plaintiff “ for many years past has been a trader” and an averment, that the words were spoken “ of and concerning the plaintiff.” It does not contain another indispensable one, that they were spoken of and concerning his trade, or of and concerning him as a trader, or of and concerning his character as a trader. The action could not be maintained on that count on the ground, that the words were in themselves actionable, because it contained no such averment. Nor could the action be maintained on that count on account of special damage occasioned by the words, because it contains no averment, that any special damage named had been occasioned by the words spoken. The plaintiff could not therefore have been aggrieved by the instructions. They might properly have been more unfavorable and have stated, that the action could not be maintained on that count, if there had been proof of special damage, because it contained no suitable averment of any such damage. As the contest was confined almost exclusively to the first count, and to the pleadings having reference to it, the second count received little attention during the trial. Exceptions overruled.