Brettun v. Anthony

Colt, J. The sufficiency of two counts in the plaintiff’s declaration is submitted upon this demurrer. The words actually used, as set forth in these counts, do not alone impute a crime which would render the plaintiff liable to punishment. They are consistent with a burning caused without criminal intent, by carelessness or accident; and additional facts are therefore alleged in each count, from which, it is claimed, the criminal quality of the act appears with certainty. This is to be settled by the familiar rules which govern the pleadings in actions of slander. "Words in themselves harmless, or of doubtful import, become slanderous when used with reference to known existing facts and circumstances in such manner as to convey to the hearer a charge of crime. This limited protection to reputation the law attempts to give against indirect verbal imputation. It must however be made apparent, by suitable averments in the declaration, that the language employed was used by the defendant slanderously, to the extent stated ; and the words, when taken in their plain and natural import, must be capable of the meaning attributed to them. The facts which determine the alleged meaning are usually stated in a prefatory manner, followed by a positive averment, or colloquium, that the discourse was of and concerning these circumstances. Whatever the particular order of their arrangement, these averments become material and traversable, and it must appear from them that the words impute the alleged offence. It is a further elementary principle, that the colloquium must extend to the whole of the prefatory inducement, necessary to render the words actionable. An omission in the respect indicated will not be aided by mere innuendoes, whose office cannot add to or extend the sense or effect of the words set forth, or refer to anything not properly alleged in the declaration. Snell v. Snow, 13 Met. 278. General allegations, that the defendant charged the plaintiff, falsely and maliciously, with the commission of a particular [40] crime, accompanied by innuendoes, however broad and sweeping, will not aid a declaration otherwise imperfect. Thus, the act of burning one’s own property becomes a crime only under special circumstances, as when done for the purpose of defrauding the insurers, or in violation of the provisions of the bankrupt act. Conversation about such burning, otherwise innocent, or of doubtful import, may be made actionable, if reference was had in it to these special circumstances, in such manner as necessarily to impute the crime. And the declaration is defective, if it does not set this forth by suitable averments. It is no answer, that facts and circumstances enough are stated, unless it is also averred that the speech of the defendant was with reference to such facts, or so many of them as are essential elements in the crime. Nor is this want supplied by alleging that the defendant, at the time of speaking the words, had knowledge of the particular circumstances which make the act of which he speaks criminal. He is to be charged only for a wrong actually committed, irrespectively of his secret knowledge or intent. He is responsible only for the meaning which the words used by him, reasonably interpreted, convey to the understanding of the persons in whose presence they were uttered. Fowle v. Robbins, 12 Mass. 498. Bloss v. Tobey, 2 Pick. 320. Carter v. Andrews, 16 Pick. 1, 5. Sweetapple v. Jesse, 5 B. & Ad. 27. Under the practice act, these rules of pleading still prevail. No averment need now be made which the law does not require to be proved; but all the substantial facts, necessary to constitute the cause of action, must be stated with substantial certainty. Tebbetts v. Goding, 9 Gray, 254. Chenery v. Goodrich, 98 Mass. 224. The plaintiff’s declaration, on the counts under consideration, does not in our opinion meet the requirements here stated. The first count avers, in substance, the destruction of the plaintiff’s building with the goods therein, and the fact that the building and goods were at the time of the loss insured against damage oy fire. It then charges that the defendant, speaking with reference to said destruction by fire, and knowing of the in [41] surance, accused the plaintiff of the crime of burning with intent to injure the insurer, by the words recited. The difficulty is, that the words thus spoken are, by reasonable construction, connected with only one of the prefatory allegations, namely, the burning of the building, and with the circumstance of the insurance. They do not therefore impute a crime. In other words, the colloquium is not coextensive with the whole inducement which the pleader thought necessary to set out. The other count is open to the same objection, and fails to connect the words with any conversation relating to the plaintiff’s bankruptcy, or any acts which are made offences under the bankrupt act. Demurrer sustained.