Beck v. Stitzel

The opinion of the Court was delivered, by Lowrie, J. — There is only one question here that demands any special notice, and that is whether or not the words charged are [524] actionable. The plaintiff below had been duly constituted administrator of his father’s estate, had had it appraised and had settled what appears to be a final account, and sixteen years after that, in 1849, the defendant charged him with having, at the time of the appraisement, secreted and smuggled away from the appraisers, two bed-fulls of leather of the estate. Is this actionable slander ? If the answer depended upon the damage done to the plaintiff in his office of administrator, perhaps it would be a negative one; for we do not see how any such damage could possibly arise. His liability to be called'to a new account is no damage in the eye of the law. Following the ordinary definition of slander, 3 Bl. 123, the question is, are these words malicious, scandalous, and slanderous, and tending to the plaintiff’s damage ? Their untruth having been established, they are malicious, scandalous, and slanderous, and then the only element wanting to make them actionable is that they be to the plaintiff’s damage. Ho special damage is alleged and proved, and hence arises the difficulty. But there are slanders so plainly tending to a man’s injury that the law, following common sense, assumes this result, and allows the jury to fix the measure of it without special proof. Will damage be presumed to follow such a slander as this ? The general action on the case was intended to be a remedy. “ adapted to the specialty, reason, and equity of the very case,” 3 Bl. 52, and of course, to be continually adaptive. And such is still its character, of which the definitions of at least two of its specifications, slander and nuisance, and the course of decisions upon them, are instructive illustrations. Matters are now regarded as slander and as nuisance which were not in former times, and the remedy and the definitions are broad .enough to require this adaptation of the decisions to the changes in the social state. We are therefore to inquire here, not necessarily for decisions in just such a case as this, but for the principle on which the Courts presume that damage is sustained. Where the charge is of an offence, it is usually said that it must involve moral turpitude and danger of punishment. This element of moral turpitude is necessarily adaptive; for it is itself defined by the state of public morals, and thus far fits the action to be at all times accommodated to the common sense of the community. The other element, danger of punishment, is not a necessary one ; for it is said in 14 Johns. 233, and repeated here in 5 State Rep. 376, that words are actionable, even though they charge an offence barred by a statute of limitations, and it has often been decided that words are actionable though they charge that the punishment has been already inflicted: 5 State Rep. 376; 2 Wils. 300; 2 M. & Rob. 119; Cro. Jac. 536. [525] The rule therefore would rather seem to be that damages are presumed where the slander involves a charge of both legal and moral turpitude, though it does not involve a danger of punishment. And the legal turpitude need not be very great; for liability to a penal action is sufficient, as for removing land-marks: 10 Ser. & R. 21. Here the moral turpitude is very gross, consisting of a positive and fraudulent breach of an official oath. The ■legal turpitude is marked by the fact of a violation of a legal oath, which is good cause for a disgraceful dismissal from office, and possibly for an indictment as a misdemeanor. A man’s general character must suffer from such a charge if believed, and therefore the words are actionable. Judgment affirmed. Black, C. J., dissented.