Frank v. Dunning

Cole, J. We have very grave doubts whether the complaint in this case is not fatally defective on account of the absence of a, colloquium showing that the words spoken imputed to the plaintiff a felonious burning. It is alleged, in substance, that the plaintiff was the owner of a certain hop-house and of a quantity of hops stored therein ; that the hop-house and hops were insured, by and for the benefit of the plaintiff, against loss or damage by fire ; that the hop-house and hops, while thus insured, were accidentally destroyed by fire ; that all these facts were known to the defendant Adella Dunning at the time when she spoke the slanderous words set forth and complained of, and were known to all persons in whose presence and hearing the words were spoken. 'It then states that the defendant Adella Dunning, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff the defamatory words following : “ Old Frank (meaning the plaintiff) has set his hop-house’on fire, and burned it up,” meaning that the plaintiff had willfully and maliciously set fire to and burned up his hop-house, and had committed the crime of arson. , Now as the words do not naturally and per se impute a felonious burning, it seems to us it was necessary to show by a colloquium that they were spoken of and concerning the burning of the hop-house which was insured, and that the intent was to charge that the plaintiff unlawfully burned the building to defraud the insurance companies. The willful burning of a building, at the time insured, with intent to injure the insurer, is a statutory felony. R. S., ch. 165, sec. 8. It is true, the innuendo attributes to the words a meaning which renders [273] them actionable; but the rule is well settled that words not in themselves actionable cannot be rendered so by an innuendo, without a prefatory averment of extrinsic facts which make them'slanderous. 1 Chitty’s Pl., 400-406; Nichols v. Packard, Vt. 16, 83; Sweetapple v. Jesse, 5 Barn. & Ad., 27; Digley v. Thompson, 2 Nev. & Man., 485; Brown v. Brown, 2 Shep., 317; Harris v. Burley, 8 N. H., 256; Beswick v. Chappell, 8 B. Mon., 486; Watts v. Greenlee, 2 Dev. Law, 115; Brittain v. Allen, id., 120; Dottarer v. Bushey, 16 Pa. St., 204; Goodrich v. Woolcott, 3 Cow., 231; Case v. Buckley, 15 Wend., 327; Gibson v. Williams, 4 id., 320; Weil v. Altenhofen, 26 Wis., 708; Weil v. Schmidt, 28 id., 138. The words, “ the plaintiff has set his hop-house on fire and burned it up,” standing alone, and by the mere force of the language, do not import that he burned the property with intent to defraud the insurers. But by means of introductory matter, or some statement that the speaker referred to the fact that the hop-house was insured, and intended by the language used to charge that the plaintiff had burned it .with intent to inj ure the insurers, a slanderous character might be given to the words. And we are therefore strongly inclined to think there should have been a colloquium that the words were spoken of and concerning the burning of the hop-house which was insured, and that thereby the speaker intended to charge the plaintiff with a felonious burning. But, without deciding this point definitely, as though the case came up on demurrer to the complaint, we think the judgment of nonsuit was right on another ground. We have already observed that the words were not actionable per se, and only became slanderous by reference to some extrinsic matter. If the hop-house was insured, and the defendant Achila Dunning knew the fact when she uttered the words, there might be some ground for the inference that she intended to charge the plaintiff with the commission of a crime. But there is not a particle of proof that she knew that the hop-house was insured, or that by the language she intended tp im [274] pute to him anything wrong in setting fire to the building. And there is certainly no evidence in the case which would warrant the jury in finding that she did impute to him, or intended to .impute to him, the commission of a crime. So that, even i'f the facts stated in the complaint -constitute a cause of action, they were wholly unsupported, or rather were unproven, by the evidence. The judgment of nonsuit must therefore be affirmed. By the Court. —- J udgment affirmed. Ryan, C. J., took no part in the decision of this cause.