Stallings v. Newman

CHILTON, C. J. —There are some old cases which would justify the court in holding the original declaration in this case bad. The case of Sir Thomas Holt v. Aftgrigg, 2 Cro. R. 184, may be cited. In that, the -words were, “ Sir Thomas struck his cook on the head with a cleaver, and cleaved his head; the one part lay on one shoulder, and another part on the other.” The verdict against the defendant was arrested in the King’s Bench, upon the ground, that “ slander ought to be direct, against which there may not be any intendments.” See also Prichard v. Hawkins, ib. 215; Holland v. Stoner, ib. 315; 4 Co. R. 20; Roll. Ab. 72; Hob. 6, 77, 177. The doctrjne upon which these, and. a number of odd cases. [309] rests, to-wit, that slander must be direct so as to exclude every intendment, and that words, in all cases, must be taken in mi-tiori sensu, has been exploded for more than a century. As far back as 1721, the same court held, that to say of a certain person “ that is the man who killed my husband,” is actionable.—8 Mod. 24. Pratt, C. J., in delivering his opinion, said, “We are to understand words in the same sense in which the hearers understood them ; but when words stand indifferent, and are equally liable to two distinct interpretations, we ought to construe them in mitiori senm; but we will never make any exposition against the plain, natural import of the words.” Portescue, J., said, the rule, to expound the -words in the milder sense, had at that time been exploded fifty or sixty years. So, in a late case, Tomlinson v. Brittlebank, 4 Bar. & Adol. 630, it was held, the words “ he robbed J. W.” were actionable, as imputing an offence cognizable by law, and that if the words were used in any other sense, the defendant must show it. The true rule requires, that words should be construed according to their obvious meaning, and taken in that sense in which those who hear would understand them.— McGowan v. Manafee, 7 Mon. R. 315; Hoyle v. Young, 1 Wash. R. 152; Hay. R. 116; 2 Dev. & Bat. R. 274; 9 New Hamp. R. 156. Applying this rule to the facts averred in the declaration, we entertain no doubt that the declaration demurred to was sufficient. When it is said, A murdered B, the sense in which such expression would be understood evidently would be, that A killed him under such circumstances as would constitute him guilty of the crime of murder; and the words clearly imputing an imputation of the crime of murder, we are not prepared to say, that if those in whose presence and hearing they were spoken had well grounded reason to believe the person said to have been murdered was dead, the plaintiff, who is the sufferer by the slander, should not recover, although the defendant may prove that the person alleged to be dead is still alive. That he would be so liable, was expressly decided by the Supreme Court of North Carolina.—See Tugart v. Carter, 1 Dev. & Bat. 8. So in Tenney v. Clement, 10 New Hamp. 52, it was held, [310] in an action for words charging the plaintiff with the crime of murder, that it was not necessary to allege or prove the death of the person said to be murdered — that it was sufficient if the existence of the person alleged to have been murdered was not known to those in whose presence the words were spoken. This is merely giving effect to the rule previously laid down — that is, construing the words in the sense in which the bystanders may fairly understand them. It follows from what we have said, that the court improperly sustained the demurrer to the declaration as it originally stood. The plaintiff, however, did not repose upon the decision, and seek a reversal in this court, stopping the cause at that stage of the proceeding, by suffering judgment to be rendered on the demurrer. He amended his declaration, and went to trial on the declaration as amended, and thus waived Ms right to review the decision of the court upon the demurrer. Such was clearly the law before the statute (Caldwell v. May, 1 Stew. 425), and the statute only reserves the right to review the decision of the court upon the demurrer when the court overrules such demurrer, and the demurrant pleads over.—Clay's Digest, p. 334, § 121. In relation to-the confidential communication of the words charged as slanderous, as proved by the witness Clayton, we need only observe, that, although they do not fall within the class of privileged declarations which constitute exceptions to the general rule of implying malice from slanderous expressions, yet that they were received by an intimate friend, to whom alone they were communicated at that time, as private and confidential, certainly goes as a circumstance to mitigate the damages, as tending to disprove malice. Privileged communications are said to be of four kinds— 1. Where the author of the alleged slander acted in the bona fide discharge of a public or private duty, either legal or moral, or in the prosecution of his own rights or interests. 2. Anything said, or written, in good faith, by a master, in giving the character of his servant who has been employed by him. 3. Words used in the course of a legal or judicial proceeding, however hard they-may bear upon the party of whom they are used ; and [311] 4. Publications duly made in the ordinary course of parliamentary proceedings ; as a petition printed and delivered to the members of a committee appointed by the Legislature to hear and determine grievances.— White v. Nicholls, 3 Howard's U. S. Rep. 266. So, also, expressions of suspicion, based upon facts detailed, confidentially and prudently made to discreet persons, in good faith, to direct their watchfulness and enlist their aid in the detection of persons supposed to be guilty of felony, which expressions are not more extended than the circumstances of suspicion justify, give the party injured no right to maintain an action of slander, since the public interest requires that such communications should be made, that offenders may be detected. Applying these rules to the case before us, we think that Clayton might well testify that he received the communication from the defendant as private and confidential, in the absence of an injunction of secrecy, or of any declaration on the part of the defendant that they should be so regarded. That he so received and understood the communication, was a fact to which he could 'testify ; but whether the words spoken were so intended by the defendant, or if so intended, they were notwithstanding prompted by malice, was a question for the jury. Nor was there any error in the charge, that confidential communications made in the usual course of business, or of domestic or friendly intercourse, shoitld bo liberally viewed by juries. What the defendant said to Clayton, as to the distress of his wife by reason of the receipt of the news of the death of his son, was not entirely foreign from this case. It served to show the condition of the defendant at the time he spoke the words, and tended to show that these words were prompted by grief, rather than by malice. It tended to explain the motive, and may be considered as part of the res. We have carefully examined the charges of the court, and are of the opinion, when they are referred to the testimony in the cause on which they are predicated, they correctly assert the law applicable to the case. There is no error in the record, and the judgment is affirmed.