Tipton v. Kahle

The opinion of the Court was delivered by Sergeant, J. Two errors have been assigned in this cause. The first is in the declaration, and the second in the court’s answers to [93] the four points proposed to them by the-defendant’s counsel. As we perceive no error, except in one of the answers of the court, it is unnecessary to repeat all these points in detail. That one is the answer given by the court to the defendant’s third point. The court was correct in saying that the words laid in the declation, “he swore me out of a sum of money,” were not actionable. But the consequence was, that all proof in relation to those words ought to have been thrown out of view by the jury; for it is unjust to assess damages in part or in whole for words not actionable: and therefore the court were wrong in afterwards leaving it to the jury to judge whether the charge thus laid was proved, and whether the defendant meant to charge the plaintiff with perjury. No innuendo, though found by the jury, could render the defendant liable for words not in themselves actionable. It is well settled that the office of an innuendo is to elucidate the meaning of the words uttered, not to alter their nature. Shaffer v. Kintzer, 1 Binn. 537; Packer v. Spangler, 2 Binn. 60. If it was meant by the court that the jury might take the proof of these words into consideration, under the averment in the declaration that the defendant had said of the plaintiff “ he is guilty of perjury,” it is impossible to assent to such a principle. There was no proof whatever that the defendant had uttered these words as here laid. The words proved by the witnesses were, substantially, “ he swore me out of a sum of money.” One of these witnesses added, that he said “he had given him leave to swear,” and another, that he said “it was before Esquire Martin.” Now it could not be allowed to the plaintiff to support an averment, that defendant had said “ he is guilty of perjury,” by words altogether different, even if they imported that charge. The meaning of the decision in Kennedy v. Lowry, 1 Binn. 393, that the substance of the words may be- stated in the declaration, is, that the plaintiff need not set out every identical word spoken by the defendant, but may give the purport of what was said by him. For example, words may be laid to have been spoken in the second person, and proved in the third: redundant epithets may be omitted : synonymous terms may, in some cases, be substituted conveying the same ideas: but it is not permitted to drop altogether both the language and ideas uttered, and sum up all in one round charge, and then leave it to the jury to say whether the words proved amounted to that charge. Such a course would -deprive the defendant of notice of the complaint against him; would perplex and embarrass him in justifying or explaining the words he had used, and would transfer from the court their duty of deciding how far the words used were actionable. It would, in fine, derange the whole system of the law relative to actions of slander. But had all the words proved to have been used by the defendant on this subject been laid in the nan., it would not have bettered the plaintiff’s case. Whether the swearing was false or not; whether, if false, it was in a judicial proceeding, was not stated by the defend-, [94] ant. There is no colloquium of any such proceeding, or of the plaintiff’s having taken an oath judicially. The words do not seem any thing like as strong as those used in Packer v. Spangler, 2 Binn. 60. There it was held that to say, “ she swore a false oath and I can prove it,” was not actionable; nor could they be helped by an innuendo of perjury. To the same effect is Shaffer v. Kintzer, 1 Binn. 537. There are other words in this count which were clearly actionable, and which appear to have been fully proved. The case ought. to have gone to the jury on them alone, and it was error to allow the other words charged, to be taken into their consideration in assessing damages. For these reasons the judgment is reversed. Judgment reversed, and a venire de novo awarded.