Peterson v. Sentman

Brent, J., delivered the opinion of the Court. The first and principal question presented upon this appeal, is one of pleading. The declaration after averring that the plaintiff is a feme sole, and a housekeeper, and has always been a virtuous, modest and chaste citizen, &c., alleges that in a certain discourse in and about the plaintiff’s character and reputation for chastity, the [153] defendant falsely, scandalously and maliciously spoke and published of her character and reputation for chastity, the following words: “you,” (meaning the plaintiff,) “are a bad woman, and keep a bad house, and 1 can prove it,” meaning thereby to charge that the plaintiff was not a chaste woman, was a whore, and kept a common bawdy house.” The same allegations are substantially made in the other two counts in the declaration, and what is said of the first, will equally apply to them. It is contended by the defendant, that the declaration contains no sufficient colloquium to support and warrant an innuendo, that in saying the plaintiff kept a “bad house,” the defendant meant thereby to charge, that she “kept a common bawdy house,” and in this view wo concur. Charging a person with keeping a “bad house” is not in itself actionable. The words, however objectionable they may be, admit of other constructions, which readily suggest themselves to the mind, than that given to them by the plaintiff. To say that a person keeps a bad house may mean a disorderly house, or one that is dirty or comfortless. So indefinite is their meaning, that to render them the foundation of an action like the present, the declaration must set out such a statement of circumstances under which they were used, or of the subject matter of the conversation, as will indicate that they were applied in a sense imputing to the plaintiff the wrong complained of. But this, under a rule of pleading firmly established by all the authorities, must be done through a colloquium and not by way of innuendo, the only object of which is to point to and explain what has before been introduced in the declaration.’ Unsupported by the necessary allegations of a colloquium, the innuendo can never be taken to expand or enlarge the meaning of the words used, and give to them a particular meaning, [154] different from that in which they would be ordinarily understood in their more innocent signification. Words will not be construed to impute a crime, if in their milder sense they have another and more harmless meaning, unless the connection in which they are used and applied would give to them that effect. The office of the colloquium and innuendo, in actions of this description, is very satisfactorily stated in the case of Van Vechten vs. Hopkins, 5 Johns. R., 211, (1 Amer. L. C., 117.) In illustrating the proper office of these distinctive parts of a declaration, the Court refer to Barham’s Case, 4 Coke’s R., 20, and say of it — “Barham brought an action for the defendant’s saying of him, £ Barham burnt my barn,’ (innuendo) £a barn with corn.’ The action was held not to lie; because burning a barn, unless it had corn in it, was not felony.” “But,” says De Gerrby, O. J., in Rex vs. Horne, (3 Cowp., 184,) “if in the introduction it had been averred that the defendant had burnt a barn full of corn, and that in a discourse about that barn the defendant had spoken the words charged in the declaration, an innuendo of its being the barn full of corn would have been good; for by coupling the innuendo in the libel with the introductory averment it would have been complete.” “ Here the extrinsic fact, that the defendant had a barn full of corn, is the averment. The allegation that the words were uttered in a conversation in reference to that barn is the colloquium, and the explanation given to the words thus spoken is the innuendo.” In the case before us, the declaration is wholly silent, in its introductory part,, as to any house of the plaintiff. There is an averment that the plaintiff was a housekeeper, but it is no where alleged, by way of colloquium, that the house in which she lived, or its character as kept by her, was the subject of conversation, or the particular object referred to by the defendant, when he used the terms “bad house” and “ornary house.” The [155] words “you keep a bad house” are not actionable, and cannot be made so by an innuendo unless properly introduced by a colloquium. In the case of Snell vs. Snow, 13 Mete., 278, the declaration charged the defendant with falsely and maliciously saying of the plaintiff, “she is a bad girl, a very bad girl,” innuendo, “that she was a prostitute and had committed the atrocious crime of fornication.” The declaration was held to be insufficient because it did not contain the necessary averments and colloquium, to warrant the innuendo. A very similar case to the present is that of Dodge vs. Lacey, 2 Cart. Reps., 213, decided by Blackford, J. In that case the declaration charged the defendant, in a conversation concerning the character of the plaintiff for chastity, with falsely and maliciously saying and publishing of her, that she kept “a public house (meaning a bawdy-house).” The Court held the declaration was defective, upon the ground that there was no sufficient colloquium to justify the innuendo. Authorities upon this point could be cited to a very large number, hut it is unnecessary, as they all concur in the inflexible rule, that words that are not actionable exvi termini cannot be made so by an innuendo, hut must he aided by a proper averment and colloquium, which will warrant the explanatory meaning given them by the innuendo. The rule may he a strictly technical one, and may operate harshly in its application to this case, hut it is too firmly established to he departed from. And under it we hold it to he clear, that there is no sufficient allegation in the declaration before us, requiring the defendant to answer to the charge of having said of the plaintiff that she kept a bawdy-house. We do not however mean that the declaration is wholly had. The charge that the plaintiff was unchaste is sufficiently set forth, and in this respect the declaration is a good one. But the absence of any sufficient allegation in regard to the character of the [156] plaintiff's house materially affects the pleas' of the defendant and the third instruction granted by the Court. The first set of special pleas filed by the defendant were not insisted upon at the argument: The demurrer to (Decided 19th December, 1872.) them was properly sustained. But it follows from what we have said in regard to the declaration, that the second plea, of those secondly pleaded, is a good plea of justification, and the demurrer to it ought to have been overruled. The third instruction was also improperly granted, as it rests entirely upon the assumption that the declaration charges the defendant with saying of the plaintiff that she kept a bawdy-house. For these reasons the judgment of the Court below will be reversed. There are other questions presented in this case, which it is unnecessary for us to examine at length. We will however add that the rulings of the Court below upon them were correct, except in so far as they are modified by what we have already said. Judgment reversed and new trial ordered.