Merritt v. Dearth

The opinion of the court was delivered by Redfield, J. After verdict for the plaintiff, the defendant moved in arrest of judgment for the insufficiency of the declara [67] tion. The case was tried on the amended declaration in two counts. This declaration is novel, and if sufficient, even after verdict, on which to found a judgment, it must be a relief to those of the profession who do not care to bo troubled about matters of pleading. The first count alleges, by way of prefatory averment, that Martha Merritt was chaste, and had been from her nativity; nevertheless the defendant, maliciously intending to injure her good name and subject her to the penalties in case of adultery, spoke of and concerning said Martha, wife of John Merritt, she then and there being a married woman, the following false and defamatory words, to wit: “ Mrs. Shattuck, the wife of C. 0. Shattuck, got Mrs. Merritt, (meaning the plaintiff, Martha Merritt), to sleep with her son William Shattuck, (said son being of adult age), and son of said Mrs. Shattuck.” Now it is averred, that at the time of the speaking of the words, which is the gravamen of the offence, the said Martha was then and there a married woman, but there is no averment nor intimation that when Mrs. Shattuck got Mrs. Merritt to sleep with her son, either of them were married persons, or that they were not mere children. It is said by way of parenthesis, within brackets, “ said son being of adult age.” This does not profess to be an averment, but a kind of side explanation. But if treated as an averment, the time when he was “ being of adult age,” may quite as well be referred to the time of issuing the writ, or of speaking the words, as to the time when said Martha slept with Mrs. Shat-tuck’s son. There is then no averment that at the time the plaintiff Martha slept with William Shattuck (as charged by the defendant), the act was a criminal offence, or, necessarily, a moral or social offence. If neither were married, it was not a crime ; if they then were children, either or both, there would be no occasion even for scandal, It is not the office of an innuendo to enlarge or supply necessary averments, and the crime of adultery cannot.be predicated by innuendo or anything alleged in the first count in this declaration. The second count is an improvement on the first in one .respect, it gives one date. It has no prefatory averment whatever, but, [68] declares “that ou the 21st day of October, 1872, the defendant spoke of and concerning the plaintiff Martha, these other defamatory words on the day aforesaid, to wit, he, said defendant, told Henry Williams that he, said Henry, had intercourse with the said plaintiff Martha, wife of John Merritt, meaning that said Martha had committed adultery with said Henry Williams, he, said Henry Williams, being then a married man and the said Martha then and there being a married woman. The averment is, that on the 21st of October, 1872, the said Martha was the wife of John Merritt, and that said Williams was also then married ; but whether either were married at the time of the alleged “ intercourse,” is not averred. This count does not attempt to set out the words spoken, but declares that “ he told Henry Williams that he had intercourse with said Martha.” In Hazelton v. Weare, 8 Vt. 480, the declaration, with proper colloquium, set out that “ defendant maliciously, openly, and publicly charged plaintiff with the crime of perjury,” and the judgment was arrested. The opinion in that case, of Royce, J., is clear, simple, and satisfactory, and characteristic of that eminent judge. II.- That defendant told Henry Williams that he had “ intercourse with the plaintiff Martha,” without any prefatory aver-ments of the occasion and sense and meaning with which the words were spoken, does not impute crime. They should bo understood in the most innocent sense, unless there be averment giving thorn other and sinister moaning. We have political and religious intercourse; domestic, social, and commercial intercourse ; but the word never in common parlance or in a legal sense, imputes or implies sexual or criminal intercourse, unless made specific by some qualifying term. One must have a very perverted brain, if he was told that some venerable religious teacher “ built up a sound religious morality by constant communion and ‘ intercourse ’ with the women and children of his flock,” to think that such language imputed a continued sexual intercourse with-the women and children under his pastoral care. This count is entirely naked of any averment that imputes crime to the plaintiff Martha. After verdict, we should not disturb a [69] judgment, however defective the declaration in matter of form; or if wo could infer that the substantial facts were found by the jury on which judgment could be founded. But in this action for slander, in which all courts have heretofore held to substantial accuracy of pleading, we still think that a declaration so defective in substantial averment that it could not uphold a verdict in general assumpsit, must be held insufficient on motion in arrest of judgment. It is therefore ordered that the judgment of the County Court be reversed, and the judgment arrested.