Fitzsimmons v. Cutler

The opinion of the Court was delivered by Royce, J. The words for which this action is brought are declared on as being actionable in themselves, since no special damage is laid, as having resulted to the plaintiff’from their publication. If actionable, they are within that class of slanderous words, which tend to exclude a person from society, by charging him with a crime for which he would be liable to punishment. To determine whether these words, as laid in this declaration, are actionable or not, it is necessary, first, to see how far the declaration is affected by the inuendos professing to ascertain the meaning and application of the words spoken. There is a material distinction, in a declaration of this sort, between an inducement, introduction, or colloquium, and an inuendo. The office of the former is, to set forth the occasion and circumstances of the publication, and to allege all extrinsick facts which are necessary to be taken in connexion with the words spoken, in order to complete the sense; while the latter has no other use than simply to ascertain the application of previous expressions particular persons or things. “It means no more than the words id est, scilicet, or meaning, or aforesaid, as explanatory of a subject matter sufficiently expressed before: as, such an one, meaning the defendant, or such a subject, meaning the subject in question. Bufas an inuendo is only used as a word of explanation, it cannot extend the sense (of the words spoken by the defendant) beyond their own meaning, unless something is (previously) put upon the record for it to explain.” (Cowp. 684.) Hence it is universally agreed, that if the words spoken are not actionable, with a mere explanation of the persons or things intended by them, they cannot be made so by an inuendo; for an inuendo is only a word of explanation, and never of addition or extension. But, by the aid of a proper introduction or colloquium, words which do not of themselves necessarily import the charge of a crime, may generally, and perhaps always, be made actionable, if really intended to convey a slanderous imputation. In this declaration there is no introductory matter, which can assist in discovering the occasion, application, or extent of the words spoken. It is not alleged that the plaintiff had been a witness in any trial, or other judicial proceeding, with reference to which, and the testimony of the plaintiff [35] therein, the words were spoken; or that they had relation to any such proceeding, or testimony,- real or pretended. Some allusion of this sort is indeed attempted by one of the inuendos; but, as already remarked, an inuendo cannot be used for the purpose of enlarging the sense of what is previously put upon the record. [34] Taft vs. Howard, 1 D.Chip. R 275. J, C. Thompson, attorney for plaintiff. B. F. Bailey, attorney for the defendant. The question then arises, whether the words here set forth are actionable in themselves, with no other construction or explanation, than simply that they were falsely and maliciously spoken of and concerning the plaintiff? It will be assumed, that to say of another, he has sworn false, is forsworn, or has taken a false oath, are all expressions of the same import. They have all been made the subject of legal examination. And for the uncertainty whether such expressions, unaided by suitable introductory averments, are meant to have relation to any judicial proceeding, in which perjury could be' committed, they have always been held not actionable. — 4 Co. 15 — 6. T. R. 691. — 2 Johns. 10. — 8 Johns. 84. Judgment, that the declaration is insufficient.