Hoar v. Ward

The opinion of the court was delivered by Redfield, J. This action is slander for words spoken. The declaration is in one count, charging three offences. The defendants file a general demurrer to the declaration, alleging four special causes. The sufficiency of the declaration is the matter submitted. The declaration contains certain prefatory averments, that said Elizabeth, at the time of the alleged slander, was a married woman, and the wife of Stephen Hoar ; that as the fruits of said marriage, she is the mother of seven children, and had ever conducted herself as an honest wife.; that the defendant, Bridget, maliciously intending to cause her to be suspected of the offences hereinafter imputed to her, &c., and to cause it to be suspected and believed that she had not kept her marriage vows, and had been guilty of committing an offence under the statutes of this state, and had given birth to illegitimate children, in a certain discourse of and concerning the said Elizabeth in her relations of wife and mother, and of and concerning the children aforesaid, said: “ You (meaning the said children) are bastards.” Meaning to insinuate that said children were illegitimate — that said Elizabeth had been unfaithful to her husband — had been guilty of lewd and unchaste conduct, and committed an offence under the statutes of this state. [665] 2d Count. That said Bridget, on another occasion, spoke to John Hoar, and said of said Elizabeth, these false and scandalous words : “ You are a bastard, and your mother is a bastard.” (Meaning to insinuate that said Elizabeth was not born in lawful wedlock, but was illegitimate.) This count imputes no blame to Elizabeth, but that her parents may have sinned. 3d Count. That said Bridget, continuing her malice, on another occasion, speaking of and concerning said Elizabeth and her children born while said Elizabeth was married and living with her husband, said in the presence of said Elizabeth and said children: “ They (meaning the children) are all bastards, and she (meaning Bridget, the speaker) could prove it.” Meaning that said Elizabeth had led a life of unchastity — that said children were a spurious offspring, and illegitimate, and that said Elizabeth had been guilty of committing a crime under the statutes of this state. By means of the premises the plaintiff has suffered anguish, loss of sleep, loss of hospitality among friends, loss of peace of mind, and health, distress of feeling, loss of time, <fcc. I. There is no prefatory averment that Bridget purposed or intended to have Elizabeth suspected of anj particular crime, but only of a crime under the statutes of this state. The words com.plained of are, that the children of Elizabeth are bastards. The inuendo, meaning to insinuate that Elizabeth is unfaithful to her husband, lewd, unchaste, and has been guilty of a crime under the statutes of this state. But the pleader does not state what crime. It is most probable, so far as the court have knowledge of the laws of propagation, that if a married woman bears bastard children, they are begotten in an adulterous commerce ; and if so, it would be a crime ; but the pleader has no such averment in this declaration. The court have less knowledge of the laws of maternity than many unjudicial modern reformers ; but they are supposed to have some knowledge of the criminal laws of the state. It is not their province to search and sift, and group together from the different parts of the declaration, facts and circumstances, and adjudge whether a definite crime may be fairly deduced. It is the office and duty of the pleader to aver [666] clearly and distinctly, in the colloquium and prefatory averments, the crime intended to be imputed to the plaintiff, and- in the inuendo, the crime pointed at and insinuated; and then it will be for the court to adjudge whether the charge is warranted by the words spoken ; and if so, the words are actionable per se. We do not think that the averments impute crime to the plaintiff with sufficient certainty ; facts are stated merely, from which a jury might infer crime. The words spoken are not therefore, in themselves, actionable. II. The words imputing the want of chastity, and lewd conduct, to the plaintiff, become actionable by the averment of special damage. Such damage must be pecuniary; vexation and anguish of mind, suffering and loss of sleep, are not sufficient. The averments of damage in this case are general, and not pecuniary in character, but among them is the "loss of time,” and it has been said by a wise man that “time is money”; but time is not necessarily of pecuniary value ; with the confirmed invalid it may be but pain and expense. It is certainly more consonent with the rules of pleading, that where the law requires the averment of special damages, the pleader should state some pecuniary loss. But it was held by this court in Underhill v. Welton, 32 Vt. 40, that an averment of special damages, notunlike this in form, after verdict, was sufficient. But if we should hold this declaration to have a sufficient averment of special doomages on general demurrer, there is nothing in such averment referring the damage averred to any or either of the injuries alleged. If all the grounds of complaint were for uttering the same slander at different times, this difficulty would be less formidable. But the second averment of slander is the charging the plaintiff Elizabeth with being a bastard ; not that she was unchaste, but that her parents were ; and there is not a single reference in any prefatory averment to any such intended injury. It stands on the single naked averment that Bridget ealled her a bastard, intending to insinuate that she was illegitimate. This charge, as a ground of action, cannot be sustained. It is altogether a matter of conjecture, whether the special damages, if any is alleged, is [667] referred to this or some other offence. In Hilton v. Muzzy, 30 Vt. 374, the court, Barrett, J., say: “It is a familiar rule, that the special damages claimed, must be averred as resulting from the particular wrongful act from which they flow.” In that case as in this, the averment was, “from the premises,” without designating what particular damage resulted from the different classes of words charged in the declaration. It is a matter of regret that this declaration, as a form, should have been revived, especially after the admonition of the learned judge at its birth. It commingles these alleged slanders, diverse not only in time but in character, and compounds them more in the manner of the apothecary, than having the clear, orderly, and distinct averment of the pleader. Judgment affirmed.