Dorsey v. Whipps

Magruder, J., delivered the opinion of this court. This appeal is taken from the court in and for Howard district. The suit was instituted by the appellee, and is an action of slander. The plea was not guilty, and in the court below the verdict was obtained by the plaintiff. In the course of the trial, several exceptions were taken by the defendant, and after the verdict, reasons in arrest of judgment were filed. Several of the exceptions, as well as the motion in arrest of judgment, put to us the question, whether the words charged to have been spoken of the plaintiff by the defendant, are actionable? These we proceed to notice. Tt is to be remarked, that no special damage is charged to have resulted to the plaintiff, from the alleged slander, and unless the third count, form an exception, it is not alleged in the declaration, that the words spoken were spoken of the plaintiff with reference to his trade. Since the decision of this court., in the cases of Chaplin vs. Cruikshanks, 2 H. & J., 246, and Sheely against Biggs, [462] same volume, 363, it must be considered to be law, that if the words stated in the declaration are not actionable, objections t© the insufficiency of the declaration may be taken advantage of by motion in arrest of judgment. Indeed, in the case first cited, the court went further, and refused to give an instruction, simply because, if such was the law, the defendant might take advantage of it in arrest of judgment. The reason of this was, that if the defendant would not demur because of the supposed defect in the declaration, he should not, especially if lie justified, obtain a verdict simply because of this defect, and thus place upon record what, seemed to be proof that the matter pleaded in justification had been proved to the satisfaction of the jury. Although a different practice has prevailed of late years m our courts, yet its propriety is not quite clear, and would not seem to justify a reversal of the court’s decision in that case. In disposing of the motion in arrest of judgment, it will be remembered, that by agreement of parties, the third count is to be considered as withdrawn. No doubt, if the words charged to have been spoken were prima facie actionable, no prefatory inducement would be required, It is otherwise, however, if the words do not naturally and per se convey the meaning which the plaintiff would give to them, or if a reference to some extrinsic matter is necessary, in order to their explanation. In 1 Chitty on Pleading, 342, we are furnished with cases which illustrate this. We do not think that the words charged in this declaration to have been spoken by the defendant, are per se actionable. “No words are actionable unless they impute a crime to the plaintiff, which subjects him to punishment.” 2 H. & J., 364. And in 1 Starkie on Slander, 43, it is said: “ To impute any crime or misdemeanor, for which corporal punishment is to be inflicted, is actionable without proof of special damage.” All opprobrious words are not necessarily actionable. Yery many words spoken of another, and which, if believed, would deprive him of the esteem of others, yet will not, per se, give to him a right of action. In deciding which words should be [463] deemed actionable, the courts have shown no wish to encourage a litigious disposition. If, in order to supply any defect in the words spoken by the defendant, and to make him-answerable for words not in themselves actionable, we are referred to any innuendo to be found in the first or second counts, it is a sufficient answer to this to say, “if the words in themselves are not actionable, their meaning cannot be extended by it, (the innuendo,) to make them actionable. If the words may be understood in a sense not criminal, there must be a colloquium in the introductory part, to show they were spoken in a criminal sense, or they are not actionable. The office of the innuendo, is to explain doubtful words, where there is matter sufficient in the declaration to maintain the action.” 2 H. & J., 364. Again, “an innuendo cannot extend the sense of the words beyond their own meaning, unless something be put upon the record for it to explain.” 1 Starkie on Slander, 422. 4 G. & J., 402. In the first exception it appears, that the plaintiff (having, as it is supposed,) proved the words charged in the declaration, and other words spoken at different times of him by the defendant, the latter for the purpose of justifying the other words spoken by him, was permitted to offer proof of matters, certainly not within the issue. Touching the admissibility or non-admissibility of this proof, we are not now to speak. It seems, all of it, to have gone to the jury by consent. “Thereupon, (the exception proceeds,) the plaintiff, with a view to rebut the evidence as above given by the defendant, to impeach the integrity of the plaintiff, offered to give evidence, that the plaintiff has always been reputed and considered among all his acquaintances as a man of integrity.” To this evidence the defendant objected, and because of its admission, this, the first, exception was taken. In admitting this testimony, we think that the court below erred. The character of the plaintiff was not in issue- In some courts, indeed, such evidence is admitted. 'There is, it must be acknowledged, a variety of doctrine upon this subject, to be found in the reported [464] decisions of the courts of our sister States and of England, and this may be mentioned as a reason why we should admit with extreme caution those opinions, “which are received from year to year, and admitted in our courts of justice, if not ns rules, at least as guides for our decision.” A cardinal rule in regard to testimony is, that it must be confined to the point in issue, and correspond with the allegations. This excludes “ all evidence of collateral facts, or facts which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.” “ In some instances, however, evidence of facts, which have no apparent connection with the matter in issue, have been admitted.” See 1st Greenleaf on Evidence, part 2, ch. 1. A departure from this rule is allowed in some actions of tort, and evidence is received, which, it is supposed, will assist the jury in ascertaining the amount of injury sustained by the plaintiff, and the amount of damages to be assessed by them. To the disregard of the rules of evidence, however, it is frequently owing that much lime is wasted, and the real points to be decided by them, are lost sight of by juries. These evils should be corrected, as far as it is possible, and in regard to testimony, and what is admissible upon the question of damages, we have some excellent remarks in 2 Greenleaf on Evidence, “ Damages.” If the slander be not justified, the law will presume the character of the plaintiff tobe good, and it will generally be found that it is best for him to be contented with this legal presumption. But here it was introduced, not to increase the .damages, but as rebutting testimony, and ought it not to have been admitted to disprove the charges which the defendant had been allowed to 'introduce? Its pertinancy, when offered for that purpose, may well be questioned. It proposes to set off the opinions which his neighbors entertain of him, against what may be considered as proof of charges injurious to the plaintiff’s character, and yet it only amounts to this, that his neighbors are not among his supposed calumniators. If the plaintiff be permitted, for this purpose, to give in evi [465] dence the opinion entertained of him “ by all his acquaintances,” the defendant must be permitted to prove, by similar and other testimony, that the plaintiff has contrived to get and retain for years, in a small circle of acquaintances, a good name, to which he was never entitled, and thus he is more slandered in the court room, than he, perhaps, ever would have been anywhere else. It is because of this mode of trying cases of slander, and of the investigation which the plaintiff himself frequently provokes, that occasion was taken to remark, that when the plaintiff succeeds in such an action, “he recovers a reputation disfigured by invective and tarnished by too much handling.” In the case of Wagner vs. Holbrunner, 7 Gill, 296, it was decided by this court, that some testimony of this description is admissible, and we are bound by the maxim, stare decisis, to depart, in some measure, from what perhaps would be the most correct rule upon the subject. See 2 H. & G., 30. 6 G. & J., 413. It is believed, however, that this court has never sanctioned the admission of testimony like this now under consideration. In 2nd Phil. on Ev., 247, (2nd edition,) he refers to a recent case, in which it was decided that such evidence is inadmissible on the part of the plaintiff, whether there is a justification or not, and this court, in the case of Brooke and Berry, 2 Gill, p. 97, rejected all the evidence of character there offered as rebutting testimony. In 2nd Starkie on Ev.,p. 303, (7th Am. Ed.,) it is said, in civil proceedings, unless the character be put in issue by the nature of the proceeding, evidence of his character is not in general admissible. We cannot think, that the testimony objected to in this exception was admissible. •JUDGMENT ARRESTED.