Hays v. Brierly

The opinion of the Court was delivered by Gibson, C. J. —Much that might be said here in favour of bringing declarations in slander nearer to convenience and the ordinary comprehension of the profession, was said, in Thompson v. Lusk, and need not be repeated. The pleadings 'in this action were moulded in subservience to the principle of mitior sensus, at a time when vexatious actions for words were so rife that the judges thought themselves bound by policy to discourage them ; and the plaintiff was required not only to prove but to state his cause of action with the precision required in an indictment of murder. The doctrine of mitior sensus, has, however, fallen into merited disuse ; and the strictness of pleading, which it introduced, is beginning to give way before the principle that it is the province of the jury, and not of the court, to construe words of dubious import, and that these are to be interpreted not by the norma loquendi, but by the sense in which they were actually uttered. There are symptoms of this relaxation every where, but particularly in Pennsylvania, where the innuendo is beginning to perform the office of an averment determinable by the jury. “Where words will bear several meanings,” said Chief Justice Tilghman, in Bornman v. Boyer, “the plaintiff has a right to aver, by innuendo, the meaning in which he conceives they were spoken, and it is for the jury to decide whether he is right.” Nor is this a notion peculiar to Pennsylvania. The doctrine was maintained so early as Oldham v. Peake, 2 Bl. Rep. 961, and it has been followed in later English cases, as well as in Dexter v. Taber, 12 Johns. 260, and Goodrich v. Woolcott, 3 Cowen 231. “It is the province of the jury,” says Mr Starkie, “ where such doubts arise, to decide whether the words were used maliciously, and with a view to defame, such being matter of fact to be collected from all the circumstances ; and for the court to determine whether such words, taken in the malicious sense imputed to them, can alone or by aid of the circumstances stated upon the record, form the legal basis of an action.” Law of Slander 44. And again, “ an innuendo may be defined to be an averment which explains the defendant’s meaning by reference to antecedent matter.” Ibid. 293. Still the jury are to judge of the fact whether the defendant uttered the words in reference to the antecedent matter; and the reason why even new matter may not be introduced by it is, that such new matter might be compounded of law and fact, and draw the decision of the whole to the jury. Thus the words “ you are forsworn,” without reference to a judicial oath antecedently introduced by a colloquium, will not [394] be an imputation of perjury, because, as it is said, the jury would have to decide on evidence whether the forswearing did in law amount to perjury, and the question would not be open to the court on the record. Ibid. 294. Though I have no great objection to this, the reason for it must be admitted to be purely theoretic, for we find no great practical mischief or difficulty in submitting mixed questions to tire jury, under the direction of the court as to the law. But there is no ostensible reason for it whatever, where the allegation is of an unmixed matter of fact, as it is where its office is to individuate the person slandered. But. putting this ground out of view, for we do not rule the cause on it, lias not the time arrived when we may say, without too wide a departure from the strictness of ancient forms, that the words “ of and concerning,” contain an averment of individual imputation sufficiently specific, except perhaps in very special cases'? In Bornman v. Boyer, there was no other averment than this general one, that the words “Bornman must have taken it” were pointed at the plaintiff; and though an objection was not raised or decided on that ground, yet if the meaning of the defendant in respect to the nature of the offence charged were deemed to be sufficiently indicated by the innuendo, it cannot be a matter of much douht whether the person charged would not have been deemed equally indicated by the general introductory averment. It is conceded that these words “ of and concerning” are sufficiently specific where the charge has been made against the plaintiff expressly byname.; a special averment being thought indispensable only as a substitute for the name, which, by reference to circumstances, makes the individuality of the person clnarged equally clear. But in Bornman’s case, only the surname, which is but a part of the name, was expressed ; and there may have been many of the vicinage cognominal with him. There was very nearly, if not altogether, as much necessity for further designation in that case, as there would have been had the words been laid as spoken of John Smith, in regard to which no averment more specific than is contained in the words “of and concerning” would have been required, though the generality of the name, which is the appellative of thousands, would have cast on the jury the business of asertaining what John Smith was meant; and this top, without recurring to circumstances antecedently introduced. The presence or absence of the baptismal name concerns but the greater or less degree of certainty; and why should it determine the necessity of further designation by reference to circumstances antecedently stated, when the jury must, after all, ascertain the person meant, whether his true name be given at the uttering of the words, or, as in the case at bar, a fictitious one in striking consonance with it. It does not appear that the plaintiff had been named in the letter, or that there was any thing to lay hold on by reference ; and it is of no little weight .that counsel have been unable to suggest, though pressed to do so, how it could be more specifically averred that, the word, Brilery meant Brieriy the [395] plaintiff, than it is by the allegation (hat the words which relate to it were uttered of and concerning him. If therefore the plaintiff cannot recover in this form of action, he cannot recover at all; and if a slight change in the name, purposely made, as this evidently was, were to shield a slanderer from legal animadversion, every man, however clumsy his invention, might securely libel his neighbour at pleasure. The consequence would be, that the land would be filled with violence and blood. The reason for requiring an averment of extrinsic matter seems to rest on the principle, that the plaintiff is not permitted to inquire into the meaning of the paper by the naked impression of wiinesses, because the jurors are as competent to judge of the impression it makes as witnesses can be. Vanvechten v. Hopkins, 5 Johns. 225. The fallacy (o which this leads is in assuming that there can be no intrinsic evidence of designation where the name is omitted. But it is evident that there are cases in which, though the name is purposely mutilated or changed, the meaning yet flashes as vividly on the apprehension as if every letter of it had been regularly inserted. A slight change, with the use of significant adjuncts, may point a slander at an individual with peculiar piquancy. I once knew a gentleman named John Anderson, grossly libelled in a song by the appellation “John Henderson my Jo;” than which no special averment could disclose the meaning more clearly. And in Fleetwood v. Curl, Cro. Jac. 557, where tire plaintiff was receiver of the court of wards, the words “ Mr Deceiver hath deceived the king,” were held actionable; and undoubtedly no other evidence of the individuality of the party meant could have been produced than the evident play on the name of his office. In such a case it would doubtless be .absurd to call witnesses; but it follows not that the jury might not be left to judge on the intrinsic evidence of the paper, and there would therefore seem to be no reason why the common averment and innuendo should not be of as much avail as if the true name had been actually given. There certainly have been many decisions to the contrary in the days of Bolle and of Croke; but, “at this day,” says Mr Starkie, “after so many of the technical niceties with which actions of this description were formerly incumbered, have been defeated, it may well be doubted whether much attention would be paid to these cases.” Law of Slander 287. What is matter of doubt on such a subject there, ought long since to have ripened into certainty here. The residue of the paragraph is so replete with good sense, that I am induced lo extract it. “ The real end and object of such averments, is to show with certainty that the plaintiff is the person aimed at; and though upon the face of the words themselves their application may be ambiguous, as where the defendant says, thy son or thy brother, yet there appears no want of certainty on the record, when it is alleged that the words were spoken of the plaintiff; and whether they were so applied or not, is a matter of evidence to be proved by showing that he did stand in (ho relation specified, and without due [396] proof of which the jury could not possibly find the truth of the averment, that the words were spoken of him.” In consideration of the many decisions on the subject, however, he advises that it would not be prudent to omit a special averment. But in a case like the present, where there may be no extrinsic circumstances of reference, and where the intrinsic evidence is all-sufficient, the want of it is certainly not fatal. Judgment affirmed.