Snell v. Snow

Shaw, C. J. From that portion of the evidence stated in the bill of exceptions only, it seems difficult to avoid the belief that the words relied on, to maintain this action of slander, constituted a privileged communication, and so were not actionable. But as the case was not placed on that ground, and as it may be presumed that the whole case does not appear in the bill of exceptions, we shall consider only the points taken, without regard to any other supposed views, which might have been suggested. 1. The first objection taken by the plaintiff is, that the court sustained the defendant’s exception to the first five counts, as insufficient, because the words set forth, without suitable averments and colloquia to explain and enlarge their meaning, if the case would warrant it, were not actionable. This would at first appear to be a demurrer ore tenus to these counts, to be decided by the court, which was sustained, and which would be irregular. But taken all together, we think that it was an expression of opinion, on the part of the court, that these counts would be deemed bad on a motion in arrest of judgment, should a verdict be rendered on them, and therefore it would be useless to go into evidence to obtain a verdict, which could not be the foundation of a judgment; and that in this decision the party acquiesced, and proceeded upon the sixth count. This count was general, alleging that the defendant openly and publicly charged the plaintiff with being guilty of the offence of fornication, lewdness, &c. and in effect, therefore, charged, in another form, the same slanders set forth more particularly in the preceding counts. By this course, in confining the evidence to the last count, the plaintiff could sustain no inconvenience, if the judge was right in ais opinion that those counts were bad and insufficient. On the contrary, she would obtain a benefit from it, by being [282] saved the expense of a useless trial, and by avoiding the haza’d of losing the benefit of a verdict, if she should get one, on a good count, because such count was connected with those which would be held bad on a motion in arrest of judgment. This court entirely concurs in the opinion of the court of common pleas, that the first five counts are bad. The words set forth in all of them were, “ she is a bad girl,” or “ a very bad girl.” There was no averment of other conversation which took place at the same times, nor any averments of other exterior facts, which, if true, would give a peculiar force and effect to the words used, or show that, though in their natural meaning they did not impute unchaste conduct to the plaintiff, yet, in the connexion in which they were used and applied to the plaintiff, they would have that effect. It is true that these words are greatly enlarged and expanded by the innuendoes ; hut these cannot aid the declaration, and make it good. The reasons for this are so fully' stated, and the point is so decidedly settled, in the cases of Bloss v. Tobey, 2 Pick. 320, and Carter v. Andrews, 16 Pick. 1, that it seems unnecessary to recapitulate them. 2. The other exception of the plaintiff is also, in the opinion of the court, untenable. The witness, after stating all that the defendant said, with all the attendant circumstances and connexions, was asked what meaning he understood the defendant to convey by these words. The judge very properly decided that the witness might testify to any existing facts or circumstances, to which the defendant alluded and referred, if any; but, having given the whole conversation, it was for the jury to determine what was meant by the language used, and that it was not competent for the witness to testify to his understanding of the defendant’s meaning, in the language used. If the words, in their ordinary sense, according to the rules of language, imputed a charge of unchasteness and crime, or if, taken in their connexion with other facts or words, they would bear that meaning, we are to presume that the jury would so find. If in their natural import, tr with accompanying words and facts, they would not bear [283] that meaning, the witness’s understanding of them could not legitimately govern or aid the jury, and would therefore be incompetent. It would be to make the defendant’s liability depend, not on his own malicious intent and purpose, in using the language, which might be quite innocent and free from blame, but upon the misconception or morbid imagination of the person in whose hearing they were spoken. Exceptions overruled.