Bruce v. Soule

Libbey, J. An action will lie, without proof of special damage, for speaking words charging the plaintiff with having a loathsome or contagious disease, the effect of which imputation, if believed, would be to exclude him from society. Stark. Sian. 97. Chaddock v. Briggs, 13 Mass. 248. Joannes v. Burt, 6 Allen, 236. “ The ground of the action being the presumption of the plaintiff’s exclusion from society, no action will lie for an imputation in the past tense, since such an assertion does not represent the plaintiff, at the time of speaking, as unfit for society, and therefore the substance of the action is wanting.” Stark. Slan. 98. Carslake v. Mapledoram, 2 T. R. 473. In the declaration the .words alleged to have been spoken by the defendant, without the innuendoes, are as follows : “ He has not been able to do any work for the last three or four years ; that he was about dead with the bad disorder, and that his died with it.” These words are included in quotation marks, and are set out as the precise words spoken by the defendant. They do not charge the plaintiff with having the “ bad disorder ” at the [567] time of speaking, but that “ he was,” in the past tense, about dead with it. We think they are not, therefore, actionable. But the defendant did not demur to the declaration, and by so doing raise the question of its sufficiency directly. He pleaded the general issue, which was joined ; and, after an intimation from the presiding judge that no cause of action was set out in the declaration, the defendant asked leave to amend by adding three new counts; and one of the stipulations in the report is that this court shall have full power to allow or disallow the amendments. All motions for amendments should be passed upon by the court at nisi prius. Crooker v. Craig, 46 Maine, 327. Thompson v. McIntire, 48 Maine, 34. As the case comes to us, we cannot determine whether the new counts are for the same cause of action set out in the original declaration or not. So far as we can determine from a comparison of the allegations in the first and third amendments with the allegations in the original declaration, those counts do not appear to be for the same cause of action, and we think they are not allowable. The second amendment oft'ered may or may not be for the same cause. It can only be determined when the words spoken, upon which the plaintiff relies, are proved. Then, if there appeal’s to be a variance between the allegations in the declaration and the words proved, in the tense of the verb used, or in some other particular, and still the judge can see that the cause of action is substantially the same, it will, undoubtedly, be competent for him to allow the necessary amendment to obviate the variance, on such terms as he may deem just; and ho can then confine the plaintiff to proof of one slanderous charge in support of his action. If this court should allow the amendments, we see nothing to prevent the plaintiff, on trial of the action, from proving as many distinct slanders as he has counts in his writ; when, by his original declaration, he can recover for but one. This would introduce a new cause of action. Action to stand for trial. Appleton, C. J., Walton, Daneorth, Peters and Symonds, JJ., concurred.