Bond v. Brewster , 16 Daly 82 ( 1890 )

Larremore, C. J.

It is well settled that in actions for slander the words complained of “must be proved as laid,”, and that it is not sufficient to prove equivalent language. “Words to the same effect are not the same words. The plaintiff need not prove all the words on the record, yet he must prove so much of them as will be sufficient to sustain his cause of action.” 2 Phil. Ev. 97, quoted with approval in Fox v. Vanderbech, 5 Cow. 513. This same rule was applied in Olmstead v. Miller, 1 Wend. 506, which was a case in which special damage was alleged; the words declared upon not being actionable pe?- se. I cannot discover that the principle established by the early cases has ever been departed from or seriously modified. These authorities are cited, apparently with approval, in Lynde v. Johnson, 39 Hun, 12. The evidence offered before plaintiff originally rested was insufficient to prove the alleged slanderous words “as laid.” Such evidence consisted entirely of plaintiff’s own testimony, and was to the effect that he called on defendant, and said, “I understand that you have told Mr. Merritt that I had exacted a commission from you; and you know it is false, and I don’t understand why you should make it,” and that defendant confessed that he had used this language or its equivalent, and apologized for what he had said. The only thing, therefore, offered, in chief, in support of the cause of action, was an alleged admission of defendant that he had uttered something entirely different in phraseology from what was charged in the complaint. Indeed, plaintiff himself testified that he did not state in what manner the commission was claimed to have been given. There was, therefore, down to the time of the motion to dismiss, at the close of plaintiff’s ease, a failure of proof to support the cause of action. The trial judge, however, refused a nonsuit, and defendant was examined; and, after he had rested, Mr. Merritt, the gentleman with whom the conversation took place, was called in rebuttal. I fail to find, even in his evidence, sufficient to make out, with what had gone before, a prima facie case. He said that defendant told him: “We have done a little work for Mr. Bond, and loaned him some money which he has never paid. ” But he failed to show anything tending to support the innuendo relied on. There is no proof of the alleged ironical inflections of voice, glances, gestures, and movements. • There is nothing to indicate that these words were not spoken in their ordinary sense, with no intention that any different meaning should be drawn from them. The court directed the witness to state the whole conversation, and the only material thing added was that Mr. Brewster said he did not expect to be paid for the work done or money loaned. As far as we can judge from the evidence as it appears in print, the natural impression for a fair-minded man to draw from the whole interview was that defendant did not intend to convey the idea that the printing and money loaned were in lieu of reward or commissions for business influenced in defendant’s favor by plaintiff. Certainly the evidence falls short of affirmatively proving an intent to slander. The whole gist of this action is not in words which of themselves were innocent, but in an alleged something, emanating from defendant, in addition to and accompanying the words. Even if Mr. Merritt got an erroneous impression, there is nothing to show that any utterance or action of defendant is responsible for it. When he called upon defendant, he was evidently prejudiced against plaintiff by statements that had been made to him by Mr. Thompson. If the words uttered by defendant were colored in Mr. Merritt’s mind by Thompson’s previous charges, certainly defendant should not be held liable for the unjust imputation, unless he himself said or did something by which he intended, directly or by innuendo, to slander the plaintiff, or from which such imputation might fairly be inferred. The case is barren of any evidence of this kind, and, for the reason that there was a total absence of proof to support the cause of action, the complaint should have been dismissed; and the judgment appealed from should be reversed, with costs.

Bisohoff, J., concurs.