Bornman v. Boyer

Tilghman C. J. The error assigned in this case is, that the words laid in the declaration are not actionable. The defendant contends that he only said, that the plaintiff took his calfskin, and not that he stole it, and that the innuendo cannot alter the meaning of the words. Where words will bear several meanings, the plaintiff has a right to aver by an innuendo, the meaning with which he conceiv es they were spoken, and it is .for the jury to decide whether he is right. It must not be supposed, that one may blast the character of his neighbour by insinuating slander, wrapped up in equivocal expressions, and then escape, under the subterfuge of not having expressly called him a thief. It appears from the whole of what the defendant said, that he charged the plaintiff with [518] talcing his calfskin in a secret and blamable manner. There are several kinds of taking which are illegal. Taking may amount to a trespass or a felony. Taking is the genus, and trespass or felony the species. The jury have said that the defendant meant a felonious taking, and I believe that is the sense in which most people would understand the words. In Oldham v. Peake, 2 Black. Rep. 959., it was stated in the fifth count, that the defendant in a conversation concerning the death cf A, said to the plaintiff, “ you are guilty,” (innuendo of the murder of A). This was held tobe good, because the conversation was concerning the death, and murder is one kind of death. Yet manslaughter is another kind of death, of which a man may be guilty. That case is fujly as strong as the present. I am of opinion that the declaration is good, and that the judgment of the court of Common Pleas should be reversed, and judgment entered for the plaintiff. Yeates J. The judgment has been arrested in this action in the court below, and the only question is, whether the words as stated in the plaintiff’s declaration are actionable. The law will not permit a person to go unpunished, who slanders the reputation of another by finesse. Words of report, injurious to character by the imputation of a crime, are the foundation of a suit; as “ I have heard a bird sing,” or “I dreamed”‘that B stole &c., 1 Lev. 277. So of words spoken by way of interrogation. Cro. Jac. 422. 568. And even of conditional words. 3 Bulstr. 260., Hob, 180. At the same time, such vindictive suits cannot be maintained, unless the words contain an express imputation of some crime liable to punishment, and the charge upon the person spoken of be precise; or when the words may be of probable ill consequence to a person in a trade, profession or office. These are the two general rules which govern in actions of slander. 3 Wils. 186., 2 Bl. Rep. 752. The words must be taken in their plain and ordinary import without addition or diminution. And what is their natural and obvious meaning as laid? “ I have lost a calfskin out of my cellar, the day that “ you (Henry Reigart) and Bornman got the leather, and “ there was nobody in the cellar that day but you, Bornman “ and Gray; I do not blame you nor Gray, but Bornman must “ have taken it.” [519] The words convey censure unquestionably on the plaintiff; but in the language of the rule, do they convey a charge of felony? The last innuendo charges, that by taking was meant stolen; and it is contended, that by the jury’s verdict the truth of the innuendo is found. The office of an innuendo is to explain matter sufficiently expressed before. In Shaffer v. Kintzer, 1 Bin. 543., this court said, “ If innuendoes can “ alter the meaning of words, they may be employed to very “ mischievous purposes. A man may be responsible not for “ what he said, but for what other persons may suppose he “ intended to say.” In that case the expressions were, “ he has “ sworn false,” (meaning thereby that he had perjured himself.) But though the jury ascribed that meaning to the words, the judgment on their verdict was reversed here. The colloquium however in that case was of an extrajudicial affidavit, made before a justice of the peace. There is no such rule, as that thé finding of the jury fixes the meaning of the words conclusively. On the contrary, the court is bound to determine whether the words are actionable, upon reasons filed in arrest of judgment; and where they are of opinion that they will not support an action, uniformly arrest it. In this case, it appears to me that the innuendo in the close of the declaration, does not carry the meaning of the expression take beyond its common and natural sense, when the words laid are fully considered. The expressions exclude all idea in the mind of the speaker, that the taking was with his consent or even knowledge; and strongly imply that the act was done secretly. This then comes up to the old legal definition of larceny, “ fraudulenta obtrectatio “ rei aliena?, invito domino.” And it is of weight with me, that the jury have found by their verdict, that the words were spoken maliciously. I would not be understood to say that this case is free from doubt; but I think my construction of the words is warranted by the case of Oldham v. Peake, 2 Bla. Rep. 959., and the authorities cited therein by the plaintiff’s counsel. I am of opinion that the judgment below be reversed, and that judgment be entered for the plaintiff. Brackenridge J. concurred with the Chief Justice. Judgment reversed.