Haynes v. Haynes , 29 Me. 247 ( 1848 )

The opinion of the Court, (Whitman, C. J. dissenting,) was drawn up by

Shepley, J.

The case, as presented by the bill of exceptions, does not state the words alleged to have been spoken, the circumstances under which they were spoken, or the instructions to the jury in full. It is not apparent, whether the words were, in themselves actionable or not; but as no question of that kind is presented, the correct inference may be, that they were.

When the words are in themselves actionable, slander consists in communicating to the hearers, that the person, of whom they are spoken, has been guilty of some crime punishable by law. Without such a communication, there can be no slander in contemplation of law. Such a communication may be made by language, which according to its ordinary signification is unsuited to do it. On the contrary, language may be used, which according to its usual signification would do it, and yet no such communication be in fact made. That the circumstances, under which the words were spoken, may be shown by proof, and that the jury may infer from it, that words unsuited to do it, did in fact make such a communication, will not be denied.

Very numerous authorities might be cited, to sustain the position. By the application of the same principle, one may introduce proof of the circumstances, under which words suited in their ordinary signification, to charge another with the commission of crime, were spoken, and the jury may infer from such proof, that no such charge was made, and of course, that the speaker was not guilty of slander.

This position is also sustained by authorities not so numerous as those applicable to the former position, for the reason probably, that occurrences of this description, are not so frequent as those of the former.

Mr. Starkie says, “thus if the defendant call the plaintiff a thief, and it be doubtful under the circumstances, whether the term was meant to be applied in a felonious sense, it is for the jury to decide.” 2 Stark. Ev. 461, ed. by Mete. He refers in a note to his authorities for the position. It will be sufficient to notice one of them. In the case of Penfold v. Westcote, 2 B. & P. N. R. 335, the words were, “ why don’t you come out, you blackguard rascal scoundrel Penfold, you are a thief.” The jury were instructed that the burden of proof, was on the defendant to show, that felony was not imputed by the word thief, and a verdict was found for the plaintiff. A motion was made to set it aside, because that word was not intended to impute felony, but was merely used with others in the heat of passion. Sir James Mansfield, C. J. said, “ the jury ought not to have found a verdict for the plaintiff, unless they understood the defendant to impute theft to the plaintiff. The manner in which the words were pronounced, and various other circumstances might explain the meaning of the word; and if the jury had thought, that the word was only used by the defendant as a word of general abuse, they ought to have found a verdict for the defendant. Supposing that the general words, which accompany the word thief, might have warranted the jury in finding for the defendant, yet as they have not done so, wc cannot say, that the word did not impute theft to the plaintiff.”

In the case of Christie v. Cowell, Peake’s Cases, 4, the words were, “ he is a thief, for he stole my beer.” Lord Kenyon “ directed the jury to consider, whether these words were spoken in reference to the money received and unaccounted for by the plaintiff, or whether the defendant meant, that the plaintiff had actually stolen beer.”

In the case of Rex v. Horne, Corp. 672, lord Mansfield said, it was the duty of the jury, to construe plain words according to their obvious meaning, and as every body, who reads must understand them, but the defendant might “ give evidence to show, they were used upon the occasion in a different or qualified sense.”

In the case of Jarvis v. Hathaway, 3 Johns. 180, the words proved were, “you are guilty of forgery,” or “you are guilty of absolute forgery.” The parties were members of a church. The words were spoken before two other members convened for the purpose of taking the second step in church discipline. With other directions the jury were instructed, “ that the circumstances, under which the charge was made against the plaintiff, were proper to be taken into consideration to determine the intention, with which it was made.” On a motion for a new trial, the instructions were decided to have been correct.

In the case of Norton v. Ladd, 5 N. H. 203, the words as laid in one form were, “Norton has taken a sable out of my trap ; he stole it, and I can prove it.” The defendant offered to prove, that the sable being an animal ferce natura, was taken from the trap of the defendant under such circumstances as not to make it the subject of larceny, and that this was known to the persons, in whose hearing the words were uttered; but the testimony offered was rejected. A new trial was granted, to admit the explanatory testimony.

In the case of McKee v. Ingalls, 4 Scam. 30, the words were, “You are a damned thief; if you have got money, you stole it. I believe you are a damned thief. I believe you will steal.” The jury were instructed, “ that if the jury believe from the testimony, that Ingalls at the time he called McKee a thief, did not intend to impute felony to him, the words are not actionable, and they must find for the defendant.” The instructions were approved. The opinion of the Court states, that the question of the defendant’s malice was a question of fact for the jury, upon consideration of all the facts and conversation, and that if they believed the words were spoken in heat and passion, and without intention to accuse of stealing any article of personal property, they must find for the defendant.

The observation made in 2 Stark. Ev. 464, ed. by Metc., that it is no answer to the action to show, that the words were spoken carelessly, wantonly, or in jest, is not at variance with this doctrine. Words may be thus spoken and communicate to the hearers, that the person named has been guilty of the offence indicated by them. Nor would defamatory words appear to be less suited to make such a communication, or to injure the reputation of the person named, if the motive of the speaker were to derive some private gratification, or emolument to himself.

The rule is correctly stated by Mr. Greenleaf, 2 Geenl. Ev. <§, 423. “ If from the plaintiff’s own showing, it appears, that the words were not used in an actionable sense, he will be non-suited. But if the plaintiff once establishes a prima facie case, by evidence of the publishing of language, apparently injurious and actionable, the burden of proof is on the defendant to explain it.”

According to these authorities, the instructions in this case were suited to guide the jury to a correct result. For if the words in themselves actionable “ were spoken under such circumstances as would not lead the persons present to believe, they were spoken as truth,” they could not have communicated to those persons, that the wife of the plaintiff had been guilty of any crime. And if the jury were satisfied, that he did not make any such communication, it was their duty to find a verdict for the defendant. The remark made in the instructions respecting the words being “ spoken under circumstances of excitement and anger,” is fully justified by some of the decided cases. If it were not, it was immaterial. For it was unimportant, whether they were spoken under that or a different state of feeling, if no criminal charge was made by them. In such case, they might perhaps with entire propriety, be characterized as a mere ebullition of ungoverned temper;” but it was of no importance, whether their character was properly described or not. If they communicated no criminal charge, they “ did not import malice, nor would they sustain a case like the present.” For malice cannot be inferred or the action be sustained, when the language used makes no such communication.

Exceptions overruled.