Kimmis v. Stiles

The opinion of the court was delivered by Roves, J. This was an action of slander. Plea, the general issue, and trial by jury. After a verdict for the plaintiff, the defendant moved in arrest of judgment, on account of the insufficiency of the declaration. The court pro forma, overruled the motion, and the case comes here upon exceptions to that ruling. The legal sufficiency of the first count in the declaration has been elaborately argued by counsel, but the view we have taken of the case renders it unnecessary that we should pass upon that question. We are agreed that the second count is bad, and that the defects in it are not cured by the verdict. [354] The verdict was general; no separate damages were assessed, and hence, in accordance with decisions made in Hazelton v. Ware, 8 Vt., 480, and Dunham v. Powers, 42 Vt., 1, the judgment should have been arrested, unless it is saved by the act of November 9th, 1865. The defamatory words, which the defendant is charged in that count with uttering, are, 1st. “ You are a liar, and I can prove it.” Imputing to another the want of moral virtue, moral duty or obligations, which render a man obnoxious to mankind, is not actionable. These words were not actionable, per se, and can only be made actionable by alleging some special damage which has resulted to the plaintiff, as a consequence of the speaking of the words, and the plaintiff’s right of recovery would depend upon his ability to prove the damage alleged. 2d. “You swore to a lie, and I can prove it.” The rule whereby courts of justice have governed themselves in order to determine words spoken of another to be actionable is, that the words must contain an express imputation of some crime which is punishable — some capital offence or other infamous crime or misdemeanor, and the charge upon the person spoken of must be precise. Onslow v. Horne, 3 Wilson, 177. And where the words spoken are ambiguous and equivocal, and require explanation by some extrinsic matter, it must not only be predicated that such matter existed, but that the words were spoken of and concerning that matter. Hawkes v. Hawley, 8 East, 421. There is a distinction made in the books between being perjured and being foresworn. The former means false swearing in a judicial proceeding, but the other has not the same meaning. Holt v. Scholfield, 6 Term, 691. In actions of this character, it is generally necessary that the declaration should allege the fact of such testimony having been given under oath, a colloquium or speaking by the defendant of and concerning such testimony; the words spoken and the innuendo that the defendant meant by those words to impute perjury to the plaintiff in such testimony. There is no allegation in this count that the defendant in the colloquium intended to impute perjury to the plaintiff. The words charged were not actionable per se, and the innuendo [355] is fatally defective, in not alleging that the defendant intended by the use of the words to impute the crime of peijury. Where the party gives a definition of the words in the innuendo, he is bound by the definition given, even though he may thereby limit the meaning as expressed in the colloquium. Here the meaning assigned to the words in the innuendo is: “ meaning that he, plaintiff, swore in said court falsely.” A man may swear falsely, and yet be innocent of perjury, and although the same strictness is not required in a declaration as would be required in an indictment, yet the crime imputed should be so defined as to leave no reasonable doubt as to the intention. As to the remaining charges in this count, it is sufficient to say that there is no colloquium to which these charges are referable. The only remaining question to be considered is: Hoes this case come within the provisions of the act of 1865 ? In order to bring the case within that statute, it must appear that both counts were for the same cause of action. This question must be determined upon what appears in the declaration, and the first count charges the words to have been spoken on the 28th day May, 1868, and in the second count they were charged as having-been spoken on the day and year last aforesaid; and the day and year last written before said count are the 12th day of May, 1868. So it would seem to have been the intention of the pleader to describe two distinct conversations. And this idea derives strength from the fact that it is alleged that the two conversations were in the presence and hearing of different persons. And again, the words set out in the two counts are not the same, and we are unable to say to which set of words the evidence applied, and which set the jury find defendant guilty of speaking. So we have been unable to find that both counts were for the same cause of action, and the'judgment of the county court is reversed and cause remanded.