York v. Johnson

Devens, J. The ruling requested by the defendant that the communication made by him to Mrs. Newton was a privileged one, and not actionable except with proof of express malice, was properly refused. There was no duty which he owed to Mrs. Newton that authorized him to inform her of defamatory charges against the - plaintiff, and no interest of his own which required [485] protection that justified it. He had declined to serve upon the same committee with Mrs. York, but he was under no obligation to give any reason therefor, however persistently called upon to do so; and even if Mrs. Newton had an interest in knowing the character of Mrs. York as a member of the same church, it was an interest of the same description which every member of the community has in knowing the character of other members of the same community with whom they are necessarily brought in contact, and would not shield a person who uttered words otherwise slanderous. Krebs v. Oliver, 12 Gray, 239. * There is, however, a ground upon which the verdict must be set aside. The defendant demurred to two of the counts of the plaintiff’s declaration, and as the verdict was general and no means exist of determining upon which count it was rendered, or whether rendered upon all, it necessarily follows that if it can-' not be sustained upon each, it must be set aside. Applying to the third count the well settled rules of pleading in actions of this nature, a verdict upon it cannot be sustained. Where words are of doubtful import and not in themselves necessarily actionable, averments, prefatory or otherwise, must be made of those facts which are essential, in order to render them intelligible; and further, these facts should be connected with the words set forth as the substantial slander by a distinct averment that it was in a conversation in reference to such facts or in connection with them that such words were uttered, in this manner affixing to them their slanderous character. Brettun v. Anthony, 103 Mass. 37. Gen. Sts. c. 129, § 87. These facts should be the subject of distinct recitals, as they constitute allegations traversable in their nature, which must therefore be so stated that the defendant may in his answer have the proper opportunity to negative them if he desires. Nor can such substantive averments be made merely by the innuendoes ; the office of the innuendo is not to introduce new facts, but to affix a meaning to the words used in their connection with facts elsewhere formally set forth in the declaration, and the innuendo is explanatory only of matters sufficiently expressed before. Bloss v. Tobey, 2 Pick. 320. If it were permitted to introduce new facts only by alleging a meaning to the words uttered such as they do not naturally import, such facts would not be asserted except inferentially. The defendant, [486] in meeting that part of the declaration which recites the utterance of the words and the meaning which the plaintiff attributes to them, is to meet these two things only, and not new matter thus introduced. In the third count, after the words “ Mrs. York or Mrs, York’s case,” alleged to have been used by the defendant, the plaintiff adds, “ meaning the accusation that Mrs. York, the plaintiff, had a loathsome venereal disorder of some kind, and had given it to a married man by the name of Charles Walton,” and thus attempts to enlarge the sense of the words “ Mrs. York or Mrs. York’s case,” by introducing a new fact, the existence of an accusation of the kind in question, which is nowhere else asserted nor even here with distinctness and certainty. The rule that there must be a distinct recital of such antecedent facts as are necessary to give the words the meaning alleged, is not met by merely asserting that they have such a meaning. The fact sought to be introduced by this innuendo must therefore be rejected from the declaration, it not being properly pleaded; and if this is done, no cause of action is set forth. If there were no such accusation as that “ Mrs. York, the plaintiff, had a loathsome venereal disease of some kind, and had given it to a married man by the name of Charles Walton,” the whole statement might have been made by the defendant as set forth by the plaintiff, and yet no slander have been uttered in reference to her. So far as anything would then be shown by the count, it might be that she was the wife to whom the husband communicated the disorder which he contracted, as it is not alleged that she was the “ lady who belongs to the Congregational Church ” from whom the alleged slanderous words charged him with contracting the disorder. It is necessary to show in what way those words, taken in their ordinary sense, imported a slander, and the third count fails to meet this requirement. The demurrer to the third count should have been sustained, and therefore there must be a New trial.