Stitzell v. Reynolds , 1869 Pa. LEXIS 51 ( 1868 )

The opinion of the court was delivered, January 5th 1869, by

Sharswood, J.

The words set out in the first count of the declaration impute no indictable offence of themselves, and without special damage, are therefore not actionable. Words, indeed, are no longer construed in mitiori sensu, but if in their plain popular meaning they convey a criminal charge, it is now sufficient. “ Elizabeth Reynolds had her hogs in your corn and carried corn away,” impute in their worst sense, standing by themselves, a mere trespass. To show that they meant to impute larceny, there must be a reference to some extrinsic circumstances, and these extrinsic circumstances must be spread on the record by proper averments, .with a colloquium. “ A word,” said Gibson, C. J., in Deford v. Miller, 3 Penna. Rep. 105, “ which does not necessarily import criminality is in pleading rendered actionable only by reference to extrinsic facts which show it to have been used in an obnoxious sense; thus the word “forsworn,” becomes actionable when shown to have been predicated of one who had given testimony under the sanction of a judicial oath; and hence the necessity of a colloquium about the time, place and circumstances.”

Perhaps the best illustration of the rule of pleading in these cases is to be found in Barham’s Case, 4 Rep., 20. The words, as laid, were, “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, remarked De Gray, C. J., on this case in Rex v. Horne, Cowp. 684, “ if, in the introduction, it had been averred that the defendant had a barn full of corn, and that in a discussion about that barn, the defendant had spoken the words charged, an innuendo of its being the barn full of corn, would have been good.” 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: Van Vechten v. Hopkins, 5 Johns. 221.

“ Nothing can be more clear,” said Lord Ellenborough in Hawkes v. Hawkey, 8 East 431, “ than the rule laid down in the books, and that which has been constantly adopted in practice, not only when the words spoken do not in themselves naturally convey the meaning imputed by the innuendo, but also where they are ambiguous and equivocal, and require explanation by referenee to some extrinsic matter to make them actionable; it must not only be predicated that such matter existed, but also that the words were spoken of and concerning that matter.” An innuendo, as has been often decided, cannot add to or enlarge, extend or change the sense of the previous words, and the matter to which it refers must always appear from the antecedent parts of the declaration: Thomas v. Croswell, 7 Johns. 271. It cannot supply the place of a colloquium: Lindsey v. Smith, 7 Johns. 359. “ It would not be easy,” says Mr. Starkie, “ or perhaps possible to point out a more clear and convenient process for technically stating a case upon the record than this, which has with great wisdom been adopted by the law from very early times; it combines simplicity with precision, separating the law from the facts, and exhibiting a statement of the cause of action on the face of the record, plain and distinct in all its parts:” 1 Starkie on Slander 431.

The decisions of this court have heretofore been entirely in accord with these principles : Shultz v. Chambers, 8 Watts 300; Thompson v. Lusk, 2 Watts 17. Where the words themselves may be taken in a double sense, the innuendo is used in order to attach such meaning to them as the plaintiff claims was intended, or may think necessary to render the same actionable. But whenever in such case the actionable quality of the words arises from circumstances extrinsic of them, averments are essential to show of record that such circumstances existed, and connect the words used with these circumstances: Gosling v. Morgan, 8 Casey 273; and in Lukeheart v. Byerly, 3 P. F. Smith 418, it was expressly decided that words laid in a count for slander, which are not actionable in themselves and have no colloquium to connect them with extrinsic circumstances, are not helped by the innuendo of larceny.

The only difficulty has been in applying the rule in determining when the words used do, in their popular sense, convey the imputation of a criminal charge, either singly or in one of two senses; for then an innuendo is all that is necessary to fix the meaning, or if not absolutely necessary, may nevertheless be used without danger. Thus in Bornman v. Boyer, 3 Binn. 515, it appeared from the whole of what the defendant had said, that he charged the plaintiff not simply with taking his calf-skin, but with taking it in a secret and blameable manner. In McKennon v. Greer, 2 Watts 352, the accusation of taking the straw was accompanied with other words “ expressive of blame for a taking, accompanied with concealment.” In Beirer v. Bushfield, 1 Watts 23, the words were held actionable in themselves, and though the innuendo altered the meaning of the charge from fornication to adultery without any colloquium, and it was agreed that this could not be done; yet it was decided to be altogether unnecessary, that it was surplusage and might therefore be stricken out or disregarded.

In Thicker v. Potts, 2 Jones 200, it was held that words which in their ordinary import imply a false oath in a judicial proceeding are actionable, although in fact there was no such proceeding, and therefore no colloquium is necessary Dottarer v. Bushey, 4 Harris 204, belongs to the same class. “ If the words charged in a narr. for slander do not imply a criminal charge subject to infamous punishment, neither an innuendo nor a verdict will help them:” Vanderlip v. Roe, 11 Harris 82. If the slanderous words alleged to have been spoken contain a charge of fornication, no colloquium is necessary. “ If the words laid do not of themselves involve the charge, or express the meaning repeated in the innuendo, then the colloquium is the place to insert the other facts, which give the color to the words laid, and without it there would be no cause of action.” On the same principle Evans v. Tibbins, 2 Grant 451, was determined. The words were, “Augustus caught them (a man and woman) together in the packing-room.” “ In the mere fact of being in the packing-room with a man there might be nothing wrong, but the words ‘ caught together in the packing-room’ were as capable of conveying to the minds of the listeners a charge of fornication against the plaintiff as any form of words that could have been chosen:” Woodward, O. J.

These are all our decisions that I have found bearing on this question; and I think it will be admitted that they have steered skilfully and successfully through. these narrows of-pleading. How, in the words as laid in the 1st count of the declaration before us there was no fault or blame or concealment alleged— merely carrying away — without even the ingredient invito domino. In the popular sense, and certainly in the legal sense, there was nothing imputed by the words themselves but a trespass, if even that.

It follows that the 1st count of the declaration was bad, and as the judgment was entered generally on the first three counts, it must be reversed; for it is well settled that when a general verdict is rendered on a declaration, one of the counts of which is vicious, it is error: Ruth v. Kutz, 1 Watts 489. But as decided in that case, a venire de novo should be issued in order that the proper amendment may be made in the court below, or the cause be re-tried on the good counts alone.

Judgment reversed, and a venire facias de novo awarded.