Gendron v. St. Pierre

The plaintiff, by his declaration, places his right of action wholly on the ground that the alleged slanderous words, per se, imputed to him the commission of the crime of killing his wife by his criminal negligence in omitting to perform a duty to her which the law imposed upon him. No question is made that a husband who can supply his wife with the necessities of life, and neglects to do so while she is living with him and is incapable of caring for herself by reason of sickness or other cause, is guilty of the crime of murder or manslaughter, according to the nature and degree of the negligence in respect to premeditation, willfulness, recklessness, and culpability, if her death is caused or hastened by such neglect. Buch v. Company, 69 N.H. 257, 260, 261; State v. Smith, 65 Me. 257; Lewis v. State, 72 Ga. 164; Territory v. Manton, 8 Mont. 95; Regina v. Marriott, 8 C. P. 425, — 34 Eng. C. L. 816; Regina v. Plummer, 1 C. K. 600, — 47 Eng. C.L. 600; Regina v. Nicholls, 13 Cox C. C. 75; 2 Bish. Cr. L., ss. 659, 686; P. S., c. 278, ss. 1-8. The demurrer raises the question whether the declaration sufficiently sets forth an imputation to the plaintiff of the commission of such a crime.

The defendant says the declaration is defective because it does not set forth that the plaintiff had the exclusive care of his wife, and does not allege, except in the inuendoes, that the plaintiff's negligence caused her death. It is stated in the inducement of the declaration that the plaintiff "has always . . . supported and maintained his family and treated his wife kindly, giving her his money and attention all within his power." This necessarily implies the existence of the relation of husband and wife between him and the woman referred to in the alleged slanderous words, an appreciation by him of the legal duty that pertains to that relationship, and an attempt on his part to fulfil the duty. It states facts showing that the duty was not removed or suspended for any cause, but still rested upon the plaintiff; and that he had the care of his wife, so far as his marital duty required him to assume such care. The alleged slanderous words also expressly state or necessarily imply the existence of the marital relation between the plaintiff — "woman's husband" — and the woman referred to, the legal duty arising from the relation, and that the wife was sick and needed medical care, medicines, and nursing, — in fact, that these were absolutely necessary to preserve her life, and the want of them caused her death. The allegation of the declaration that the words were uttered and published "of and concerning the plaintiff," in connection with the other allegation above quoted, and the words themselves, show that the words were spoken of and concerning the plaintiff in his marital relation to the sick woman and the performance of the legal duties he owed the woman by reason of that relation. Characterizing the plaintiff's conduct toward his wife as "apparent indifference with reference to her condition," — indifference of such kind and degree as to induce a suspicion of fraud depending for its consummation upon her death, — accompanied with the statement that the woman "appeared to be sadly neglected," is an emphatic, though indirect, statement that he was culpably negligent in the performance of his legal duty to her. It falls little, if any, short of charging the husband with deliberate and premeditated negligence with a view of causing or hastening the wife's death. It was not necessary that the plaintiff should have the exclusive care of his wife to render him guilty of the crime, if he himself was criminally negligent. The fact that the wife's sister, the priest, or some other person was also equally guilty would not relieve the plaintiff from responsibility for his own negligence.

Another objection made to the declaration is that the slanderous words alleged in it are but an expression of a suspicion or opinion that the plaintiff committed the crime referred to; that they do not definitely charge the plaintiff with the crime. According to the defendant's alleged statements, his suspicion relating to insurance fraud was not the cause of his thinking that the wife was neglected. On the other hand, the neglect of her was the cause of his suspicion. He noticed when he first visited the woman that "she appeared to be sadly neglected," and he attributed the motive for this neglect to insurance fraud. He further stated, in substance, that there was neglect in omitting for three days to administer to her the remedies that had been prescribed by the magnetic healer. If this omission was due to the advice of the priest, the fact would not necessarily show that the omission was not negligence of a culpable nature. He further asserted his belief that if the use of the remedies had been continued the woman might have recovered. He refused to sign a death certificate. These statements, taken together, naturally convey the impression that the wife's death was caused or hastened by criminal negligence. But he seems to have summed up the whole matter in the definite statement: "I think the woman was neglected in order that her family might get the insurance." The definiteness and injurious effect of this statement are not taken away or materially modified by the introductory words "I think." The expression "I think A murdered B" is quite likely to have the same effect upon the hearers that the expression "A murdered B" would have. If it be regarded as an expression of an opinion, it nevertheless imputes the crime to the plaintiff; and the imputation is supported and made more effective in this case by the fact that the defendant was called as the medical attendant of the wife. At least, a jury might find, from a consideration of the words in the light of the circumstances alleged, that the defendant meant by his statements absolutely to impute to the plaintiff the commission of a felony. Moore v. Butler, 48 N.H. 161; Tozer v. Mashford, 6 Exch. 539; Simmons v. Mitchell, 6 App. Cas. 156.

The defendant further says that the inuendo which follows the words "I think," etc., extends the sense of the words. The inuendo is: "Meaning that she, the plaintiff's wife, was culpably neglected in her sickness by the plaintiff, so that she, the plaintiff's wife might die, and he, the plaintiff, might receive the insurance upon her life." When the facts recited in the inducement of the declaration, above referred to, and the other statements of the defendant are considered, it appears that the words to which the inuendo applies may have been used in the sense therein stated. As before stated, a jury might find that the defendant meant that the woman was neglected by her husband in order that she might die, and he or her family — it is immaterial which — might obtain the insurance which the defendant supposed was outstanding upon her life. The jury might think that describing such neglect as "culpable" limited rather than enlarged the idea expressed by the word without qualification. The inuendo does not appear to exceed its proper office. Harris v. Burley, 8 N.H. 256.

"It is immaterial whether the words spoken impute an offence to the plaintiff in a direct manner, or indirectly by such hints or modes of expression as are likely to convey the intended meaning to the persons to whom the words are addressed." Sturtevant v. Root, 27 N.H. 69, 72; Tenney v. Clement, 10 N.H. 52; Symonds v. Carter,32 N.H. 458. The defendant's words appear to have been of this character; and the declaration, though somewhat inartificially framed, contains sufficient recitals, allegations, and inuendoes, if proved, to render the defendant liable in an action for slander. Robinson v. Kegset, 22 N.H. 323. The demurrer was properly overruled.

There was no exception to the denials of the petition, motion, and request made prior to April 29, and consequently there is no question of law before the court with respect to these matters. The ground of the defendant's motion of April 29 to set aside the verdict is stated in several forms, but in substance it is that, upon the whole evidence, the verdict is "against the evidence" and so contrary to law, as to both the defendant's guilt and the damages. It is but a repetition of the previous motion to set aside the verdict. The denial of the first motion and the omission of the defendant to except to it concludes him upon the questions presented by the motion, unless, upon an application to the superior court for a rehearing, he shows that he is entitled to it by reason of accident, mistake, or misfortune. If the defendant desired to raise questions of law upon the denial of the motion, he should have done so at that time. Furthermore, the defendant waived his right to object on account of the insufficiency of the evidence to support the declaration, by his submission of the case to the court upon its merits, without making a motion for a nonsuit or for an order of judgment in his favor. Elwell v. Roper,72 N.H. 585. Non constat that the plaintiff might not have been able and been allowed to introduce evidence to supply the deficiency if such motions had been made.

The declaration alleges that the slanderous words mentioned in it were false and were spoken of and concerning the plaintiff maliciously. If the words were used in a manner and sense to impute a crime, they imply malice; and the amount of the damages to which the plaintiff is entitled depends in part upon the effect of the malice upon the plaintiff's mind. Symonds v. Carter, 32 N.H. 458; Friel v. Plumer, 69 N.H. 498. It does not appear, as matter of law, that $50 would be excessive damages, even if there was no evidence of malice other than the publishing of the words, if they were found to be used in the sense above mentioned.

Exceptions overruled.

All concurred.