Robinett v. Ruby

Bartol, J., delivered the opinion of this court. The bill of exceptions in this case presents two questions; first, whether there is a material variance between the words charged in the first count of the declaration, and the words proved; and secondly, whether the words spoken by the defendant, were spoken on an occasion and under circumstances in which he was privileged in using them. The slanderous words charged in the first count are: “the girl that hired with us has got it,” and the words proved are: '“■the girl ¿hat lived with us has got it.” It appears by the colloquium set out in the declaration, and by proper inuendos, that these words were spoken of and concerning the plaintiff, and that they imputed to her the crime of larceny. The supposed variance is between the words lived and hired. In Buller’s N. P., 5, it is said: “It was formerly holden that the plaintiff must prove the words precisely as laid; but that strictness is now laid aside, and it is sufficient for the plaintiff to prove (he substance of them,” and in Cooke’s Law of Defamation, 89, (53 Law Lib.,) it is said: “much of the former strictness as to words spoken, has been relaxed in the more modem decisions, and the rule now appears to be, [101] that it is sufficient if the words containing the substance of the slander be laid in the declaration,” See Maitland vs. Golduey, 2 East., 428. Millar vs. Miller, 8 Johns., 74. Dancaster vs. Hewson, 17 Eng. C. L. Rep., 297. It is true, as contended for by the appellee, that the words constituting the charge must be proved substantially as laid, and that proof of equivalent words will not suffice; 2 East., 438; 1 Wend., 506; but here the whole substance of the alleged slander is in the words, “the girl, (meaning the plaintiff,) has got it,” and the words, “that hired with us,” or “that lived with us,” serve only as a designation of the person, and do not constitute any substantial part of the defamation. In our opinion therefore, the variance in them is wholly immaterial. We are also of opinion, that the circumstances under which the defendant used the defamatory words, do not constitute them a privileged communication. This question arises upon the first prayer of the defendant, and the prayer offered by the plaintiff. It appears from the evidence, that the defendant had suspected the wife and daughter of Furlow, (the witness,) of having stolen his money, and that circumstances had occurred which removed that suspicion; the witness called on him and asked, “'whether he charged or suspected his (witness’s) wife and daughter, the defendant replied that “he had suspected them, because he could not recollect any body being at his house but them; but that he did not suspect them now, because circumstances had lately occurred which took away those suspicions,” and then without further inquiry proceeded to relate the circumstances which bad removed his suspicion, and added the slanderous words concerning the plaintiff, complained of in this action. Those words, as they are charged in the declaration, are actionable per se, and we are not aware of any rule of law which exempts a party, under circumstances such as these, from responsibility for using them; or which imposes upon the plaintiff the burden of proving malice in fact, in order to entitle her to maintain the action. Furlow, the witness, was a stranger both to the plaintiff and [102] the defendant, he was interested in knowing, and had a right to inquire of the defendant, whether his wife and daughter were suspected, and to that extent the defendant had a right to answer, and he might be justified in stating also, the circumstances which had removed his suspicions. But farther than that, his privilege could not extend. It could not be necessary to charge the plaintiff with the theft, in order to satisfy Furlow that his wife and daughter were relieved from the accusation. None of the authorities cited by the appellee, authorize us in saying that the defendant was privileged m making this charge. “Even where the communication is in its nature privileged, the scope of the defamatory matter must not exceed the exigency of the occasion.” Cooke on Defamation, 35, 36. ( Decided February 24th, 1859. ) Considering that the circuit court erred in granting the first and third prayers of the defendant, and in refusing the prayer offered by the plaintiff, the judgment must be reversed. Judgment reversed and procedendo awarded.