Fitzgerald v. Robinson

Ames, J. The words complained of in the first count of the declaration are not slanderous in themselves, and are not made so by any averments that they were spoken of the plaintiff’s trade or business. However indecent or profane they may appear as set forth, they do not impart a defamatory charge. There is nothing in the declaration to show that if the plaintiff did bring the defendant into court, even to his shame and scandal, he was guilty of any crime, or did anything wrong, in so doing. It does not appear whether the defendant meant to be understood, in using the language imputed to him, that he was brought into court as a defendant, a plaintiff, or a witness, or how bringing him into court could have operated to his scandal or shame, or how it furnished him any ground of complaint. We are unable to see how the falsity of the words, even supposing them to have been malicious, could have affected the plaintiff’s good name, or created any necessity that the law would recognize, for “ showing his innocency ” of the supposed offence and misconduct so charged against him. But taking the whole count together, it is apparent that it is intended to charge more than a mere slander upon the plaintiff’s good name. His complaint is in substance, and when relieved of all unnecessary averments, that the defendant made a charge against him which (whether criminal in its nature or not) was wholly false and malicious; that for the alleged reason contained m that false charge he proceeded on a certain Sunday, in the presence of the congregation and during service, in his official character as a priest, to pronounce an anathema upon the plaintiff, and to go through a ceremonial which was understood, and was intended to be understood, as a formal, authoritative, ecclesiastical sentence of excommunication, depriving him of all his rights and privileges as a member of the Roman Catholic Church; and which had the effect of injuring him in his business as a [379] trader by depriving him of the custom and trade of a large number of persons, enumerated in the declaration. As the question of the sufficiency of this count in the declaration is raised on a demurrer, we are to inquire whether, assuming the facts averred to be true, they are sufficient as matter of law to enable the plaintiff to maintain this action. As a member of that communion, he was subject to its discipline in matters spiritual, as administered by its proper officers, and in accordance with its rules. The power of excommunication resides somewhere in that church, and if the defendant, in virtue of his priestly office, was vested with that power, as the declaration seems to imply, the exercise of it was in the nature of a judicial act. The declaration does not distinctly inform us what his authority was in that respect, but if the act done amounted to a valid excommunication, it is not for the civil courts to inquire into the reasonableness or propriety of the act. If the defendant was competent to pass sentence of excommunication, we cannot inquire into the grounds and regularity of the proceedings. Remington v. Congdon, 2 Pick. 310. Bouldin v. Alexander, 15 Wall. 131. Shannon v. Frost, 3 B. Mon. 253. Farnsworth v. Storrs, 5 Cush. 412. Gregg v. Massachusetts Medical Society, 111 Mass. 185. We say that the declaration seems to imply that the charge made by the defendant, if true in fact, would have rendered the plaintiff liable to spiritual censure, according to the discipline of that church. There is no other view of the case, in which the falsity of the charge can be said to be material. The plaintiff apparently rests his case on the falsity and not on the trivial and frivolous nature of the charge. But if, on the other hand, the defendant had no authority to pronounce such a sentence, and his act in doing so was a mere cold assumption of power not intrusted to him, the plaintiff has not been excommunicated at all. It is not for us to decide what remedy he has, or whether he has any whatever in such case, as to his spiritual rights. It must always be remembered that in a court of law the only inquiry is as to civil rights. If the declaration is to be understood as presenting the plaintiff’s case in this aspect, the amount of his grievance is that the effect of the lan [380] guage and ceremonies complained of was to induce certain persons to consider him as laid under an interdict, and to avoid all intercourse and business with him for that reason. But as the words complained of do not charge the plaintiff with any misconduct «which the law can take notice of, the misconstruction of those words by such persons is not sufficient to furnish a ground for an action at law. The declaration does not charge an intent to injure the plaintiff in any of his business relations. The difficulty with the plaintiff’s case as presented in this count lies in the fact, that in this country and in this age, a sentence of excommunication, even if pronounced by competent authority, and still more, if possible, when pronounced without authority, is incapable of impairing or affecting a man’s civil rights. There was a time when excommunication was attended with many serious temporal inconveniences; the object of it was excluded from the society of all Christians, and disabled to do any act required to be done by one that is probus et legalis homo. He could not serve on juries, nor be a witness in any court, and, which is still more serious, he could not bring an action, real or personal, to recover lands, or money due to him. He was further liable to the writ de excommunicato capiendo, by which the sheriff was directed to take the offender, and imprison him in the county jail, until he was reconciled to the church. On these grounds, says Mr. Starkie, the case of Barnabas v. Traunter, 1 Vin. Ab. 396, may perhaps be considered as authority consistent with the general rule. Starkie on Slander, (3rd ed.) 104. This case is cited and relied upon by the plaintiff, but it is hardly necessary to say that none of the reasons suggested by Mr. Starkie as being “ perhaps ” sufficient to sustain it, have any existence under our laws. That was a case in which the rector of a parish, under pretence of written directions from' the ordinary, falsely and maliciously announced from his pulpit that the plaintiff had been excommunicated. The plaintiff’s action was sustained ; but it is clear that this case is not law in this Commonwealth. The result of this examination is that the demurrer to the first count must be sustained. The second and third counts, which present the same cause of action in other forms, are liable [381] to substantially the same objections, and must also be adjudged bad on demurrer. In the fourth count of the declaration, the words charged as having been spoken by the defendant in relation to the plaintiff and his business are these, “ He keeps a bad place of resort; keep away from it.” It is alleged that the plaintiff was a trader, and was also accustomed to let his hall for social parties; that the words alleged to have been spoken by the defendant were spoken maliciously and with the intent to injure the plaintiff in his business ; that they were false as well as malicious; and that they had the effect to injure him in his business, by depriving him of the custom and trade of divers persons who are specially enumerated in the declaration. The words purport to be advice to all persons to whom they were addressed to avoid going to the plaintiff’s place of business, for the reason that it was a bad place of resort. They amount to a charge that the plaintiff kept a place to which he permitted disreputable persons to resort for improper purposes. We have then a false charge, maliciously uttered for the purpose of injuring the plaintiff in his business, having a natural tendency to produce that effect, and resulting in special damage to him in that business. We think that this count in the declaration comes within the rule that words, even though not in themselves actionable, may become so by being spoken of the special profession, office or occupation of the person to whom they are applied. For this reason, this count in the declaration is sufficient in law, and the demurrer to it must be overruled. Swan v. Tappan, 5 Cush. 104. The fifth count is also good, and sufficient to maintain the plaintiff’s case so far as to put the other party to his defence. If we take the well established rule that words complained of as slanderous are to be understood in their natural and obvious sense, and to receive the construction which the persons to whom they were addressed would ordinarily and reasonably attach to them, the words charged in this count plainly convey a criminal imputation. To say of any one, “ He keeps a bad house, not a proper place of resort; he keeps bad girls there,” would be substantially equivalent to saying that he keeps a house of ill fame, [382] In Snell v. Snow, 13 Met. 278, it was held that to say of a woman, “ She is a bad girl,” does not necessarily import that she was unchaste, or a prostitute, and that such a meaning could not be attached to the words by the innuendo. But the language in this count goes much farther. Taken together, it hardly admits any other construction than that which the plaintiff has given it. The demurrer to this count is therefore overruled. The sixth count we think may also be sustained. It charges that the plaintiff, being a trader and accustomed to furnish meals and entertainment for parties, had been applied to by certain persons to provide entertainment for them; that the defendant, maliciously intending to injure him in business, used these false, &c. words to those persons, “ Do not go to his house to bring disgrace on yourselves and on me; do not go that way at all; he is a bad man,”— whereby they were prevented from going there, and he lost their custom, &c. It is true that the charge is somewhat indefinite, but it is sufficiently averred that it was spoken of the plaintiff in his business. It is equivalent to charging that he was a person of so bad a reputation that it would be disgraceful to go to his house at all. It was advice to all who heard it not to go to his place of business, and it had the effect of injuring him in his business. We think that this count comes within the rule that we have already held to be applicable to the fourth count. The result then is, that the demurrer is overruled as to the fourth, fifth and sixth counts of the declaration, and is sustained as to all the other counts. Judgment accordingly.