Dicken v. Shepherd , 22 Md. 399 ( 1864 )

CochraN, J.,

delivered the opinion of this Court.

This suit was brought by the appellant to recover damages for alleged slanderous words spoken of him by the appellee. Of the counts contained in the declaration, only the 2nd, 3rd and 14th are relied on, as material to the questions raised on this appeal. The case proceeded to trial upon issues joined on the pleas of not guilty, limitations, and the truth of the words declared on in justification; during the course of which, the appellant took five exceptions to the rejection of evidence, and one to the rejection of his prayers and the granting of three prayers offered by the appellee. In passing on .the questions of evidence presented by these exceptions, it will be more convenient, as well as intelligible, to state briefly, the rules by which they must be determined.

This action is founded on an alleged injury to the appellant in his business, resulting from words spoken of him by the appellee, and in accordance with that state of fact, the declaration goes for special damages on all the counts necessary to be considered here. The settled rule in all such cases, whether the words in themselves are actionable, or so only because of some special damage, is, that no evidence of any particular loss or injury caused by the words spoken, is admissible, unless such loss or injury is particularly alleged in the declaration as the special damage. It is also well established, that the proof of such special damage must bo limited to the evidence of persons to whom the slanderous words were spoken. These propositions, with a reference to the authorities from which they are deduced, may be found in 3 Phil. Ev., 562. (4th Am. Ed.) and 2 Greenleaf Ev., 454, note. Testing the admissibility of the evidence contained in the exceptions under consideration by these rules, the correctness of the ruling of the Court below cannot be doubted. The evidence in question was all of it obnoxious to one or the other of the rules above stated. Other well founded objections are made to a portion of this evidence, but as we shall affirm the rulings of the Court, for the reasons already given, it is not material that those objections should be considered here:

The appellant’s 1st prayer presents the question whether the alleged slanderous words, as laid in the 2nd, 3rd and 4th counts of the declaration, were actionable without proof of special damage. It is unquestionably true, that an action may be maintained on words spoken maliciously of one in reference to his trade or business, if they import, or amount to a charge of insolvency; but it is essentially necessary in all such cases, not only to aver, but to show that the words were so spoken. If the words have an uncertain signification, .and such as “require explanation by reference to some extrinsic matter to show that they are actionable, it must be shewn that such matter existed, and that the words related thereto.” And where words are actionable only because of their “effect on the plaintiff in his profession, trade, or business, there must be a distinct allegation that the plaintiff was at the time of the scandal, in such profession or exercising such calling.” 1 Chitty, 400, 401. Lewis vs. Chapman, 17 Barb., 252. Wadsworth vs. Bently, 22 Eng. Law and Eg. Rep., 176. 1 Phil. Ev., 555. Looking to the words declared on here, we do not see that their import was such as to involve in any way the appellant’s trade or business, and certainly they are not laid in the declaration as so spoken. Even admitting that the words, as charged in these counts, were actionable, the proof admissible under the plea of limitations, does-not show that the appellee uttered them, or any words of precisely the same import. But, without discussing the question of variance, the prayer is objectionable, because it does not leave to the jury the finding of the fact that the words charged in these counts were spoken of and concerning the appellant in his trade or business; a defect fatal to the prayer, whether the fact of so speaking them was averred in the declaration or not.

The appellant’s 2nd prayer is also objectionable. In effect, it is an instruction to the jury, that the appellant is entitled to recover under the pleadings in the case, if they should find that certain words recited in the prayer were spoken by the appellee maliciously, and with the intent to injure the credit of the appellant, although they should further find that the words so spoken were true. The proposition is, that on the pleadings the appellant could recover on the finding of words varying from those alleged in the declaration, notwithstanding the finding should be for the appellee on the facts pleaded in justification. In the argument of this proposition, the appellant, while admitting a formal variance of the words in the prayer from those contained in the 14th count, nevertheless insisted that their import was substantially the same, and if found by the jury, that he would be entitled to recover on that count. Our understanding of the words recited in the prayer and those alleged in the declaration, does not lead us to that conclusion; and we may further add that the testimony of McElfish, the witness relied on for the proof of the words, shows a substantial variance from those contained in both prayer and declaration. 'It appears from the evidence of this witness, assuming that it was admissible under the plea of limitations, that the appellee made some inquiry- of,him as to the appellant’s indebtedness to his customers, and that the witness then asked the appellee how much the appellant owed him, to which the appellee replied: $2,600 against the 1st of October following, when it would become due;” that “he had prolonged the time with Bichen one year, to give his friends out there a chance to malee their money out of him,” and that “if he owed me (the witness) anything I had better be getting it, as he intended to shut down on him against the 1st of October, as he could not wait with him any longer than that time.” It,is true that the words, set forth in the prayer and alleged in the declaration, are among those shown by this testimony; but it cannot be questioned, that the proof, in the same connection, of the additional facts that the words were spoken in answer to the witness’ question, and that the appellee’s inability to wait longer than the 1st of October was given as a reason for the statement made, gives to them an import widely different from that attributed to them in the declaration and prayer. In our opinion the variance thus shown is fatal.

But the prayer presents another question requiring some notice, and that is, in regard to the legal effect of finding the facts, pleaded in justification. Malice, in making a communication, is undoubtedly necessary to constitdte the communication an offence; but it is often difficult to apply the rule distinguishing cases where malice may be presumed, or found as matter of fact from those where, as matter of law, there can be no such finding or presumption. But according to our apprehension of the case, that difficulty does not exist here. The office of a plea justifying words declared on, as to secure to a defendant the privilege of making-such a case, by proof of the matter pleaded, as will excuse the words and bar the presumption of malice. In this case the truth of the words was pleaded, upon which without objection to the sufficiency of the plea, issue was joined; and the truth being found according-to the hypothesis of the prayer, the simple question is whether malice was a fact still open to the finding of the jury. We think it was not. The established rule is, if a defendant justify specially, that it is not necessary to deny the innuendos and epithets contained in the declaration; for, if the fact be justified, the motive, intention and manner are immaterial. 1 Stark. on Slan., 422. 1 Ohitty, 477. Astley vs. Younge, Burr., 807. The several propositions presented by the prayers of the appellee, we think are substantially correct. The principles referred to, and applied in our consideration of the questions raised by the exceptions taken to the rejection of evidence, so far justify the instructions contained in these prayers, as to render a more particular notice of them unnecessary. Finding no material error in the rulings of the Court below, we shall affirm the judgment.

(Decided November 25th 1864.)

Judgment affirmed.