Lukehart v. Byerly

The opinion of the court was delivered, by Woodward, C. J. After considerable reflection on the subject, we have come to the conclusion that the words as laid in the three first counts are not actionable in themselves, and there being no colloquium to connect them with extrinsic circumstances, they are not helped by the innuendo of larceny. Words are actionable in themselves only where an offence is imputed by them for which the party is liable to indictment and punishment either at common law or by statute. The words in the 1st count are that the said David Byerly had “ taken apples,” or had “ stolen apples,” or had “ taken apples without asking for them,” or words to that effect, and in substance that the plaintiff had committed larceny. Now, although according to Kennedy v. Lowry, 1 Binn. 393, as explained in Tipton v. Kahle, 3 Watts 93, it is sufficient to state the substance of words in the declaration — that is, the plaintiff need not set out every identical word spoken by the defendant, but may give the purport of what was said by him— yet the imputation, whether in substance or in hcee verba, must be of a distinct criminal offence, or it is not slanderous fer se. “ Taking apples” is not necessarily an indictable offence, nor even taking them without asking for them, for it may be only a trespass, whilst stealing apples is indictable. But when the slander charged is an alternative between trespass and larceny, an indictable offence is not necessarily imputed. And when with another disjunctive conjunction they are described as “ words to that effect,”'the imputation becomes still more equivocal, for to “that [421] effect” may mean either to the effect of trespass or larceny— these being the antecedents, with nothing in the relative to distinguish which is meant. It is quite conceivable that the jury may have found under this count that the defendant only imputed a trespass to Byerly, and if so, the words were clearly not actionable. When words per se do not import criminality, a colloquium is necessary to couple them with facts which give a particular hue to the meaning, and which by the help of innuendoes designate the persons and things alluded to, and disclose the charge of guilt: Starkie on Slander 391; Thompson v. Lusk, 2 Watts 11; Deford v. Miller, 3 Penna. R. 105; Gosling v. Morgan, 8 Casey 215. Then, if the evidence sustain the allegation, the verdict can be interpreted as finding the crime imputed; but where words are 'laid in an equivocal sense, as imputing a trespass or a felony, though proved as laid, the verdict cannot be considered as determining the sense in which they were understood. These observations are equally applicable to the 2d and 3d counts, which are in the same alternative and equivocal terms as the first, and which are equally destitute of a colloquium to connect the equivocal phrases with extraneous circumstances which might fix the sense in which they were to be received. These counts, which would have been held bad on demurrer, are not cured by the verdict, for the vice is radical in not unequivocally imputing an indictable offence. The 4th, or additional count, imputes unequivocally the crime of larceny, and the words as laid are, we - think, actionable; and the evidence was fit to go to the jury as sustaining the charge. Words are not to be received in mitiori sensu, but in the plain and popular sense in which the world in general understands them, and according to this rule, the words proved imputed the crime laid in the 4th count. The defendant has no reason to complain of the rejection of the evidence referred to in the 4th assignment of error. The general issue only had been pleaded, and under this, whilst the 'defendant might assail the general character of the plaintiff, he might not, as I understand our decisions, give evidence of particular reports, not even of the general currency of the particular charge which he took up and endorsed: Long v. Brougher, 5 Watts 439; Conroe v. Conroe and Wife, 11 Wright 201, and the cases cited. But the court admitted evidence that the circumstances were communicated to the defendant before uttering the words for which, he was sued, which was as much as he had a right to expect. , This kind of evidence may have tended to negative malice and to mitigate damages, and in both respects the advantage of it was offered-to the defendant. His complaint is ground [422] less that the court did not go beyond this, and that the court said there was no sufficient evidence to repel the presumption of malice. But the judgment cannot be sustained because the verdict was general, upon evidence that applied to all the counts, and we have seen that only one of them was good. Had the verdict been taken upon the last count only, judgment might have been rendered thereon, but as it is a general judgment upon all the counts, it must be reversed.