Walter v. Erdman

Opinion by Orlady, J., This action in trespass sur slander was instituted April 29, 1896, and proceeded in to judgment on a verdict January 8, 1897. An appeal to this court by the defendant was perfected January 18, 1897. On February 7,1897, Charles D. Walter, the plaintiff in the action, died. On February 23, 1897, letters of administration on the estate of Charles D. Walter were granted by the register of wills of York county to the Security Title and Trust Company of York, Pa. and on argument of this cause, when called March 8, 1897, the administrator presented its petition, setting forth the above facts, and prayed that the death of the plaintiff be suggested, that it, as administrator' be substituted as appellee, and be permitted 'to enter the plea to the assignments of error by the appellant of “ in nullo est erratum.” At the same time the appellant by counsel presented affidavits, setting forth the death of Charles D. Walter after taking out the appeal, and before assignments of error therein in this court; and • moved the court hr abatement of the suit, to quash the original writ, the statement and declaration filed at the costs of appellee, etc. [353] These motions were first argued, and in disposing of, what may be considered in some states, a disputed question, we have recent authority from our own Supreme Court in resolving it in favor of the appellee. In Wood v. Boyle, 177 Pa. 620, the action was trespass for libel; after verdict and before judgment was entered thereon, the plaintiff died. A rule was taken to show cause why the judgment should not be arrested. Two terms had not elapsed since the verdict was rendered, the rule was discharged and a judgment entered by order of the court. The defendant appealed to the Supreme Court, and made the refusal of the court to arrest the judgment the subject of an assignment of error. On the authority of Chase v. Hodges, 2 Pa. 48, and Murray v. Cooper, 6 S. & R. 126, the judgment was sustained. In the case before us judgment was entered before the death of the plaintiff, an application was made to substitute the administrators on the first day after in a court having authority to amend the record. Any error or irregularity in entering judgment in favor of the plaintiff who is dead when the judgment is pronounced, is cured by the Act of 17 Charles II. chap. 8, which is reported by the judges as in force in Pennsylvania: Robert’s Digest, 377. This statute provides that “ in all actions, real, personal or mixed, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdicts ” and its binding force in Pennsylvania is recognized in Griffith v. Ogle, 1 Binn. 172; Murray v. Cooper, 6 S. & R. 126; Chase v. Hodges, 2 Pa. 48. At common law, personal actions did not survive to heirs or personal representatives, and had the plaintiff died before trial .the action could not have been prosecuted by this appellee, nor would it be saved by section 28, Act of February 24,1834, P. L. 73, as “actions for slander, for libels and for wrongs done to the person ” are expressly excepted from its provisions. The administrator is substituted and the motion to quash the appeal is overruled. The defendant at an arbitration at which he was his own counsel, was charged with saying of the plaintiff in that action in the presence of a number of his relations: “ that the whole [354] Walter family were thieves, liars, rascals and defaulters ” and soon after, when approached by Charles D. Walter and asked if he knew him, replied that he did not and did not want to, and when informed that he was of the Walter family, was then asked: “How came you to say that all the Walter family are liars, thieves, rascals and defaulters,” the defendant replied: “You are no better than the rest, you are a liar, a thief, a rascal and a defaulter, and ought to be driven out of Hanover.” The innuendo in plaintiff’s statement, in giving the explanation and meaning of the words used was “meaning thereby then and there, to charge that plaintiff had been and was guilty of the crimes of larceny, fraud, and embezzlement; came of a disreputable and dishonest family; and was a person unworthy of trust, confidence and respect.” The defendant’s 1st, 2d and 4th points covered by the first, second and third assignments of error were refused, the questions were fully disposed of in the general charge in a way which met the propositions raised in the points, and the jury were plainly told, “In order to find a verdict, you must be satisfied from the weight of the evidence that these words were spoken, that the words ‘ thieves ’ and ‘ defaulters ’ were spoken or either ‘ thieves ’ or ‘ defaulters ’ because as I said to you in the beginning, if you find that Mr. Erdman used either the word ‘ thief ’ or ‘ thieves ’ or the word ‘ defaulter’ or ‘ defaulters ’ in reference to this plaintiff, then he is entitled to your verdict.” (Fifth assignment.) And again: “Now, then, the question is did he utter the other words ? Did he say the Walter family, and did he say to Charles Walter that they were ‘thieves ’ and ‘ defaulters ? ’ ” These words are actionable per se. That is, if the plaintiff proves to your satisfaction that the defendant did use those words in reference to him, then he is entitled to recover a verdict at your hands; and he does not need to show either that the defendant uttered them maliciously, nor that he sustained any damage by reason of his utterance of them. The law implies both, if he did utter them, — not only that they were wilful and malicious, but that they import damages. That was such an infraction of his character as entitles him to compensation, if you believe he uttered them.” Taken in connection with the concluding paragraph of the charge, viz: “Webster defines the word ‘defaulter’ to be one [355] who makes default; who fails to perform a public duty; who fails to account for public money intrusted to his care ; a delinquent.” “ One of the words used in this statement is the word “defaulter.” The plaintiff alleges in the statement that the word “ defaulter,” as used by the defendant, means an embezzler ; that he had been guilty of fraud or embezzlement. The word “ defaulter ” may be used either to charge a criminal offense, or an offense not criminal. Therefore the plaintiff in his statement alleges that the meaning that Carl Erdman intended by the word “ defaulter,” was to charge him with having committed, or being guilty of, an embezzlement, or of commuting a fraud. Before you can find a verdict based upon that word “ defaulter,” you must find that Carl Erdman, when he made the charge, intended to impute to the plaintiff that he had been guilty of embezzlement; such an one as he would be indictable for at law, and for which he could be punished criminally,” the question was properly submitted. The defendant denied using the words “ liar ” and “ defaulter ” or that he knew the meaning of the latter. The evidence was conflicting but there was sufficient to justify the verdict. An innuendo cannot introduce new matter or enlarge the material meaning of words, or put upon them a construction they will not bear. The office is to define the defamatory meaning which the plaintiff sets upon the words ; to show how they come to have that meaning, and how they relate to the plaintiff. If they are capable of the meaning he ascribes to them, it is for the jury to say whether they are used in that sense: Price v. Conway, 134 Pa. 340, and Wallace v. Jameson, 179 Pa. 98. To aid in interpreting the meaning of the words “ thieves,” “liars,” “rascals” and “defaulters” as applied to the plaintiff the jury had the testimony of the defendant, “I said to John Walters you are a set of liars, rogues, and you ought to have been drove out of Hanover and over to Maryland, the same you was at Oxford of Adams county.” All the words spoken at the time may properly be stated and given in evidence; for they explain and show the animus of the principal charge: Klumph v. Dunn, 66 Pa. 141. The several assignments of error are overruled and the judgment is affirmed.