Blumhardt v. Rohr

Irving, J., delivered the opinion of the Court. The appellee sued the appellant for slander. The narr. contained four counts, alleging in various words and form the slander claimed to have been uttered injuriously to the plaintiff’s business and character. The appellant pleaded not guilty, and justification because that which was alleged to have been spoken was true.

As the Circuit Court instructed the jury, that there was no evidence upon which the appellee could recover, under the first and second counts of his declaration, the only counts now under consideration are the third and fourth, under which recovery was permitted and obtained. As questions arise involving the sufficiency of these counts to support the action, we insert them here: “3. And for that on or about the twenty-third day of July last past, the plaintiff then being, as he still is, engaged in the lucrative and profitable business of butchering cattle for sale, the defendant well knowing the premises, and contriving to injure the plaintiff in his said business, at Lexington Market, in the City of Baltimore, in the jiresence and hearing of G-eorge Long, Abraham Frank and many other persons, spoke and uttered of and concerning the plaintiff and his said business, the false, malicious and slanderous words following, to wit: ‘It is better to buy Western beef, than to buy beef from a slaughter-house ivhere condemned or diseased cattle are slaughtered,’ meaning thereby that the plaintiff kept such a slaughterhouse, and that the plaintiff was slaughtering ■ and selling the carcases of diseased cattle for meat and human food; whereby the plaintiff suffered great loss and damage to his said business, and to his character and reputation, and whereby the plaintiff in his busi ³³⁴ ness lost the trade and custom of the said Abraham Frank, and also a certain Ormond Hammond, Jr., and also divers other persons. “4. And for that on of about the tenth day of March last past, the plaintiff then being, as he still is, engaged, in the lucrative and profitable business of butchering cattle for sale, the defendant well knowing the premises, and contriving to injure the plaintiff in his said business, in the restaurant of Frederick Zimmer, in the City of Baltimore, in the presence of Charles Reeder, and many other persons, spoke and uttered of and concerning the plaintiff, and of and concerning his said business, the false, malicious and slanderous language following, to wit: ‘Did you hear of those diseased ’stillery bulls Rohr (meaning Charles Rohr, the plaintiff,) was getting and selling the meat at four and four and a half cents, and bulls are selling for that; if is cheaper to buy the meat than bulls/ meaning thereby that the plaintiff was slaughtering and selling the carcases of diseased cattle for meat and human food; whereby the plaintiff suffered great loss and damage to his said business, and to his character and reputation; and whereby also the plaintiff, in his said business, lost the trade and custom of divers persons, to wit: of a certain Abraham Frank and Ormond Hammond, Jr., and many others." Verdict and judgment having been obtained in favor of the plaintiff, a motion was made in arrest of judgment which was overruled, and we will first consider that ruling before passing on the exceptions taken during the trial.

The verdict was a general verdict in favor of the plaintiff, and was therefore a finding adversely to the defendant upon the plea of justification. If any count in the narr. was good, it needs no citation of authority at this day for holding the judgment properly sustained. ³³⁵ The appellant contends that the words charged to have been uttered are not actionable per se, as they do not charge the appellee with the commission of a criminal offence, and that to make them actionable because of special damage, they are not accompanied rvith the colloquium to show in what sense they were used, for the words used do\ not state that the meat was being sold for human food. It was at common law a punishable offence to sell diseased meat for human food. 1 Starkie on Slander, star page 39; 2 East’s Pleas of the Crown, 821; 2 Wharton’s Crim. Law, 1434; 4 Bl.

Comm., 162. The offence was a misdemeanor punishable by fine or imprisonment. Whether the punishment was of that character, that under the decision of this Court in Griffin and Wife vs. Moore, 43 Md., 252 , it wouldoieccssao'ily render it actionable peo' se, is not important for us here to decide; because the slander charged is of one engaged in business or trade, and is alleged to have been spoken of the appellee and his business, and the words used, if used as charged on their face, were calculated to injure his business, and were therefore actionable per se. Folkard’s Starkie, 177 and 178, where numerous authorities are collated in support of this rule.

Dicken vs. Shepherd, 22 Md., 399 . The declaration distinctly avers, that the plaintiff was in business when the words were uttered, and was still so when action was brought. The words being in themselves prima facie actionable, there was no need for either colloquium or innuendo; though the innuendo is clearly stated, and states that the charge was for selling diseased meat for human food. It is not necessary to set out the offence supposed to be imputed with the same precision as is required in an indictment.

If it is done in such language as in ordinary “ lay conversation ” will impute, or he understood to impute guilt, that will he sufficient. Petersen vs. ³³⁶ Sentman, 37 Md., 155 ; Odgers on Libel and Slander, 105 and 106. And where the charge is made of a trader it need not he in positive language, hut any words which will imply guilt are sufficient. And if the words refer to trade, colloquium is unnecessary. 9 Bacon’s Abr., Title Slander, 52; Odgers on Libel and Slander, 120 and 123.

The narr. having alleged the plaintiff to he a butcher, engaged in butchering and selling cattle, the ordinary and natural understanding of that term, “butcher,” as in common use, would he understood to be, that'he was killing and selling cattle for human food. No other idea would be natural. And certainly where the innuendo so expressly avers, there can be no doubt that the third and fourth counts set out a good cause of action, without further colloquium; and the motion in arrest was properly overruled. It was suggested, that the omission to append a claim for damages to the counts projjosed to be added, and which were allowed as amendment, was a fatal omission.

But we think a fair and proper construction of the leave to add these counts, would introduce them into the narr. in numerical order, so as to precede the general claim of damages. The leave was not to file a new narr., hut to add counts “three and four” to the narr. already filed. Therefore they would follow in regular order, and the claim of damages would follow all as the unifo'm practice obtains. To hold otherwise and strike down the narr. for this supposed defect, would be forcing a technical rule into application.

The first exception is to a statement of Charles Reeder, a witness for the plaintiff,’ with respect to the injury done the plaintiff by the words uttered. The witness, after proving the utterance of the words alleged to have been used in his presence, said in reply to a question which is not given, that “he could not tell how much reports of this sort injured Rohr’s business, ³³⁷ should think it would necessarily injure it.” • The exception is to the admissibility of testimony “as to how much reports of this sort injured Rohr’s business;” that is to say, (we suppose) to that statement of Reeder. The law presumes it is hurtful to some degree, and that is all witness testified to. He did not attempt to fix any measure of damages.

He says he can not say how much. So there was no opinion expressed which was hurtful, and if he was not competent as an expert, engaged in a kindred business, to express an opinion, he has expressed none beyond that which the law implies, and we see no error in the ruling. The second exception was to Rohr’s own statement as a witness, as to how many cattle he was in the habit of killing per week before the slanderous words were spoken, and how many afterwards — i. e., seventy-five to a hundred before, and not more than forty afterwards. The objections formulated in the exception are, “1.

Because it is an offer to prove special damages not alleged in the declaration. 2. Because the declaration does not entitle the plaintiff to offer evidence of special damage to business.” This objection was not well taken, and there was no error in admitting the evidence. The slander complained of was one affecting the plaintiff’s business, from which the law presumes general damage, and gives the right of action for it. In order to assess the damages, the jury must have some mode of estimating them, and that was what was sought by the plaintiff’s statements to give to the jury.

It was proof, not of special damages, hut of general damages, and was .therefore entirely proper. It was the general loss the trader had suffered which was being shown. Odgers on Libel and Slander, 292-311; Ingram vs. Lawson, 6 Bingham’s New Cases, 216. In the third exception the defendant proved by a witness, that he knew the plaintiff and his sons; and ³³⁸ that he believed they were the salesmen of their father at his store on Paca street, and that he bought meat of the sons at the Paca