Posnett v. Marble

The opinion of the court was delivered by Munson, J. The plaintiff was an applicant for appointment as postmistress at the North Fayst'on office. The defendant’s-husband was an applicant for the same position. One Chase, a post office inspector, was engaged in inspecting this office. While so engaged he procured the defendant’s attendance at the office,, and questioned her in regard to the plaintiff. The defendant at first declined to say anything about the plaintiff, whereupon Chase told her it was his business as inspector to make the-inquiry and her duty to give him the information. The defendant then had a conversation with Chase concerning the plaintiff, in which it was claimed she used the words set forth in 'the third count. The testimony offered in proof of what the defendant said was objected to on the ground that the communication was-privileged. The court received the evidence, but told the jury — 488 — in submitting the case that the occasion was in a sense privileged ; and further instructed them that if the defendant said what she did in good faith and without malice she would not be liable, but that if she improved the occasion to maliciously make false charges against the plaintiff she would be liable therefor. To such admission of evidence and to this part of the •charge the defendant excepted. The plaintiff was an applicant for appointment to a public office. In view of her application, her character was a matter of public concern. The defendant was a member of the community immediately interested in the result of the application. Her conversation was with one who she might naturally suppose could prevent the appointment. The circumstances were such as to justify the defendant in communicating what she honestly believed as to the plaintiff’s conduct and character. The selection of suit- • able persons for the performance of official service is essential to the interests of both the government and the citizen. These interests can be protected only by the communication of information and by free discussion concerning the fitness of applicants. It would tend to repress this necessary freedom, and would be a manifest injustice to the citizen, if communications of this character subjected the person making them to the payment of damages in the event of an honest mistake. But these •considerations disclose no necessity for a privilege broad enough to cover charges which are unfounded and malicious. A just distinction is established, ■ and reasonable protection afforded to ■every interest, b}»- holding communications of this nature to be jyrima facie privileged. By virtue of this privilege, a defendant who has made a statement which cannot be substantiated is relieved from the effect of a legal presumption of malice, and is made liable only by proof of actual malice. The occasion in -question was not one of absolute privilege, but was so far privileged as to protect a communication made in good faith and from an honest motive. The testimony objected to was properly -admitted, and the charge of the court as to the nature and limitation of the privilege was correct. Town. Sland. s. 209; 1 Am. Lead. Cas. 166. — 489 — The plaintiff was permitted to show by the person who served the writ what the defendant said on hearing it read. This was. under objection and exception. The exceptions show what counsel anticipated the testimony might be, but do not state what the testimony was. In the charge it was treated as testimony to. admissions of the defendant., and no exception was taken to this as unwarranted by the evidence. The exceptions disclose no. error. The defendant excepted to the charge as to the degree of precision required in establishing the defamatory words. The court first instructed the jury that the plaintiff must prove the words alleged in the declaration substantially as laid, and afterwards said it was not necessary that they should find the defendant used the precise words alleged, but that they must find the charge was made substantially in the words set forth. This is in accord with the rule deduced from the authorities and laid down in Smith v. Hollister, 32 Vt. 695. We think it was sufficiently explicit. It left no room for the jury to suppose that proof of other words of substantially the same meaning would entitle the plaintiff to recover. Several points are made under the motion in arrest. No special damages were shown. The words charging the disease were justified, the plaintiff conceding the fact. The case stood upon the charge of keeping a house of ill-fame. It is urged that words charging one with keeping a house of ill-fame merely are not actionable per se. The statute provides for the punishment of one who keeps “ a house of ill-fame resorted to for the purpose of prostitution or lewdness.” The innuendo in each count explains the words spoken as meaning to charge the plaintiff with keeping “ a house of ill-fame,” without using the further words of the statute. It is said there are several kinds of houses of ill-fame, and that as the matter is left by the pleader, the words must be taken to mean a house of ill-fame of a more innocent character than the one described in the statute. Both at common law and in common language the term“ house of ill-fame,” without words giving it a special application, means a house resorted — 490 — to for prostitution. Bouvier defines a house of ill-fame to be “ a house resorted to for the purpose of prostitution and lewdness.” Thus, to charge one with beeping a house of ill-fame is to ■charge the exact offense punished by our statute. The inauendo is sufficient in this respect, unless it is necessary, in alleging .that a statutory offense was intended, to use the ■ entire language of the statute. We do not think this strictness is required. It is further insisted that if the words are sufficient to charge the crime described in the statute, the punishment of the crime is not an infamous one, and that the words are therefore not actionable. This claim is in view of the fact that by the statute of 1884 the punishment was changed from imprisonment in the State prison to imprisonment in the house of correction. But it is sufficient if the punishment is corporal; the place of confinement is not the test. The crime charged is one that involves moral turpitude and subjects the offender to imprisonment, and the words are therefore actionable. Redway v. Gray, 31 Vt. 292. It is also objected that in neither count is there an averment that the plaintiff had a house. As regards the first and fourth ■counts, in which the defendant is charged with using words directly denoting the possession of a house, this is no defect. When the slanderous words themselves import the existence of the thing it is not necessary to aver its existence. Town. Sland. s. 308, n; 1 Chit. Pl. 403. The slander is the same whether the falsity of the charge relates only to the character of a house or includes the existence of one. The defamatory words relied upon in the first count are : “ She keeps a common open house; she is nothing but a whore anyway,” and the meaning assigned is that she kept a house of ill-fame. The question is not, as assumed by the defendant, whether this is the only natural meaning of the words “ common open house.” In determining the meaning of this particular phrase the language used.is to be taken together, and the question then is, what might the person to whom the words were spoken have properly taken them to mean ? Might they not, — 491 — ■without other aid, have naturally conveyed the meaning assigned by the innuendo % If so, the words are legally susceptible of the meaning charged and the count is sufficient after verdict. The charge of keeping a common open house, standing alone, could not support an innuendo that a house of ill-fame was meant, without the aid of special prefatory averments. But when it is said of a woman who in the same connection is declared to be a prostitute, that she keeps a common open house, we think the words are legally susceptible of the meaning here ascribed to them; and the jury has found by its verdict that they were used by the defendant in that sense. The important words of the second- count are: “My mail won’t come into a whore house.” The term used to indicate the character of the house is, in common language and acceptation, synonymous with the term used in the statute. But the defamatory words have no apparent connection with the plaintiff or her affairs, and their application must fully appear from the antecedent averments and colloquium.'. It is averred that the plaintiff was an applicant for appointment as post mistress, and that the defendant spoke the words of and concerning the plaintiff to prevent her obtaining such appointment. We think there should have been also an averment that the plaintiff had a house, and that the colloquium should have been framed to include it. Here the charge is made by an indirect reference, and the possession of a house is only implied. In the third count the defendant is charged with having referred to the plaintiff’s house as a “ stinking place,” and an unfit place for the mail. This is alleged to have been followed by a question and answer as to the possible communication of some disease. The subsequent conversation is set forth as follows : “ Why, is the character of Mrs. Posnett not in good standing ?” “ I do not think she is.” “ Is she in the habit of having men come there to her house and lounge around and stay fo1' hours at a time ?” “ I am sure she does that. She has men enough there most of the time.” We think an innuendo which ascribes to the defamatory language of this count the meaning — 492 — that the plaintiff kept a house of ill-fame, goes beyond the fair import of the words. The words relating to the presence of men at her house are not in themselves sufficient to carry this meaning, and there is no direct charge touching the plaintiff’s character for chastity to give them aid. The objections to the fourth count are confined to the points, already considered, in relation to the description given the offense in the innuendo and the want of an averment that the plaintiff had a house. The defamatory words of the fifth count charge the plaintiff with having a venereal disease. There is not a further suggestion in the language. It utterly fails to justify the innuendo that the plaintiff kept a house of ill-fame. The several counts purport to be for words spoken upon different occasions. A general verdict was rendered upon all the counts. The second, third and fifth counts are held to be insufficient, and the court has no means of determining upon which counts the damages were in fact assessed. This being the situation, what disposition shall be made of the case ? The courts are not agreed as to the procedure. One-course is to end- the suit by arresting the judgment. Another course is to award a venire de novo. In Haselton v. Weare, 8 Vt. 480, the court arrested the judgment, saying that this was in accordance with the settled rule in England. The court had before it English cases in which this course had been taken,, but the English practice up to that time was far from uniform, and the other method has since prevailed. One of the cases relied upon • by the court in Haselton v. Weare, was Holt v. Scholefield, 6 T. R. 691. But this case was expressly overruled by Leach v. Thomas, 2 M. & W. 427, soon after Haselton v. Weare was decided. In Leach v. Thomas, it was said that this point did not appear to have been at all argued in Holt v. Scholefiel; and in Corner v. Shew, 4 M. & W. 162, Parke, B., in stating that the point had been considered doubtful before the decision of Leach v. Thomas, expressed surprise that such a doubt should have existed, inasmuch as the matter had been provided for by rules of court in both the King’s Bench and — 493 — the Common Pleas as early as 1654. In Empson v. Griffin, 11 Ad. & E. 186, the court of Queen’s Bench followed the decision in Leach v. Thomas, and awarded a venire de novo. The rule adopted in Haselton v. Weave has never been cordially approved. In Wood v. Scott, 13 Vt. 42, the court considered the question settled, but Redeield, J., referred with evident sympathy to the regret expressed by Lord Mansfield in Peake v. Oldham, Cowp. 275, that such a rule had been established. In Camp v. Barker, 21 Vt. 469, and in Whitcomb v Wolcott, 21 Vt. 368, the court vigorously criticised the rule, and indicated its intention to make all reasonable intendments in favor of a verdict when some of the counts were good. In the latter case, the court referred to the modern English practice of awarding a venire de novo where it could be done, as the true course, but considered that this could not well be done in a court of error. In Joy v. Hill, 36 Vt. 333, the motion in arrest was disposed of on the ground of a misjoinder of counts, the question whether the expressions in more recent cases had abrogated the law as declared in Wood v. Scott being recognized but not considered. In 1865 the difficulty was removed by statute as far as declarations containing only counts for the same cause of action are concerned. R. L. 913. In Dunham v. Powers, 42 Vt. 1, and in Kimmis v. Stiles, 44 Vt. 351, decided since this enactment, the counts not being for the same cause of action, it was considered that judgment should be arrested. In view of the misapprehension under which the rule was adopted, the position afterwards taken in regard to it, and the modern vindication in the English courts of the earlier and better practice, we are inclined to extend the benefit of a new trial to cases like this. Upon a mistrial of this character, we think the law may conveniently and properly give the litigants a more substantial justice than is afforded by an arrest of judgment. That the proposed action may properly be taken by this court is apparent from the settled practice of many courts of error. The nature of the proceeding is fully stated in Corner v. Shew, above cited. The theory is that the defect is in the ver — 494 — diet. The order is made, in the language of the ancient rule, “ as upon an ill verdict.” By sending back the case an opportunity is given to have the damages assessed upon the good counts only. The plaintiff will also be entitled to the usual privileges of amendment under the rules of the trial court. Judgment reversed. New trial granted on condition that plaintiff pay defendants costs heretofore incurred in the cotort below, and talce no costs for that time in the event of a final recovery ; and if a new trial is not desired upon these terms, plaintiff to become non-suit. Cause remanded.