Olmsted v. Miller , 1 Wend. 506 ( 1828 )

By the Court,

Savage, C. J;

It is said in Butter’s N. P. 5, that “ it was formerly holder), 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 the substance of them. However, if the words be laid in the third person, proof of words spoken in the second person, will not support the declaration.” This rule was adopted by this court, in Miller v. Miller, (8 Johns. R. 74.) In that case, the words laid, were, “ My watch was stolen out of the widow Miller’s (plaintiff’s) bar, and Tina Miller took it, and her mother (plaintiff) concealed it.” The proof was, that the defendant-said that his watch had been stolen from him in the plaintiff’s bar room, and that he had reason to believe that Tina Miller took'it, and that her mother (the plaintiff,) concealed it. The court, after recognizing the rule above cited from Buller, held that there was no variance; that the assertion, that he had reason to believe that one took and the other concealed, is equivalent to the charge, that the one took and (he other concealed it; and that the charge of concealing must be construed by connecting it with the previous words, which averred that it had been stolen; and that so construing the words, they imported criminality.

In Fox v. Vanderbeck, (5 Cowen, 513,) the words laid were, “ You are perjured, and I will put you into the state prison.” “He has sworn false and perjured himself, &c.” “ He swore to an absolute falsehood, and he has perjured himself.” The proof was, that while the plaintiff was testifying, the defendant interrupted him, and told him it was not so. He requested the justice to keep the. minutes of the plaintiff’s testimony, and afterwards demanded them, and said he wanted them to prosecute for perjury; that he thought he should prosecute the plaintiff for perjury. We held that though the words proved were actionable, yet they did not support the declaration; that the rule laid down in 2 Phil. Ev, 97, is correct, that the words proved, must be proved as laid j and it will not be sufficient to prove equivalent words of slander. That in the language of Lawrence, justice, in Maitland v. Goldney, (2 East, 438,) “ though the plaintiff’ need not prove all the words laid, yet he must prove so much of them, as is sufficient to sustain his cause of action; and it is not enough for him to prove equivalent words of slander.”

It is important that this rule be adhered to, that the defendant may know what he is to meet; and that he may not be held accountable for the misunderstanding of witnesses, as he might be if they were permitted to testify to the import of his words. The court and jury are to construe his words, and not the witnesses. I am therefore of opinion, that the proof in this case did not sustain the declaration. The first charge is that she had connection with Phineas Barrett. The proof is, that Phineas Barrett and others were in the habit of visiting her frequently. Defendant had just before said, that plaintiff was fond of men, and was a very bad woman. These words, although they may be said to be equivalent to the charge of having connection with P. B., yet, within the rule heretofore established, they are not the same in substance. The same remark is applicable to the other charges. The same idea is conveyed in the words charged and those proved; but they are not substantially the same words, though they contain substantially the same charge but in different phraseology. The special damage shewn, is probably sufficient. (1 Taunt. 39. 8 T. R. 130.) The plaintiff was refused civil treatment at a public house, in consequence of the slanderous words spoken by defendant. She was also refused the hospitality and protection of a friend in consequence of similar slanders; but that loss is not proved to have been the consequence of the words spoken by the defendant.

On the whole, I am constrained to say, that the plaintiff in the court below did not prove the words laid in her declaration, and,- therefore, ought not to have recovered.

Judgment reversed, and venire de novo to Westchester common pleas.