Dicken v. Shepherd

CochraN, J., delivered the opinion of this Court. This suit was brought by the appellant to recover damages for alleged slanderous words spoken of him by the appellee. Of the counts contained in the declaration, only the 2nd, 3rd and 14th are relied on, as material to the questions raised on this appeal. The case proceeded to trial upon issues joined on the pleas of not guilty, limitations, and the truth of the words declared on in justification; during the course of which, the appellant took five exceptions to the rejection of evidence, and one to the rejection of his prayers and the granting of three prayers offered by the appellee.

In passing on .the questions of evidence presented by these exceptions, it will be more convenient, as well as intelligible, to state briefly, the rules by which they must be determined. This action is founded on an alleged injury to the appellant in his business, resulting from words spoken of him by the appellee, and in accordance with that state of fact, the declaration goes for special damages on all the counts necessary to be considered here. The settled rule in all such cases, whether the words in themselves are actionable, or so only because of some special damage, is, that no evidence of any particular loss or injury caused by the words spoken, is admissible, unless such loss or injury is particularly alleged in the declaration as the special damage. It is also well established, that the proof of such special damage must bo limited to the evidence of persons to whom the slanderous words were spoken. ⁴¹⁶ These propositions, with a reference to the authorities from which they are deduced, may be found in 3 Phil.

Ev., 562. (4th Am. Ed.) and 2 Greenleaf Ev., 454, note. Testing the admissibility of the evidence contained in the exceptions under consideration by these rules, the correctness of the ruling of the Court below cannot be doubted.

The evidence in question was all of it obnoxious to one or the other of the rules above stated. Other well founded objections are made to a portion of this evidence, but as we shall affirm the rulings of the Court, for the reasons already given, it is not material that those objections should be considered here: The appellant’s 1st prayer presents the question whether the alleged slanderous words, as laid in the 2nd, 3rd and 4th counts of the declaration, were actionable without proof of special damage. It is unquestionably true, that an action may be maintained on words spoken maliciously of one in reference to his trade or business, if they import, or amount to a charge of insolvency; but it is essentially necessary in all such cases, not only to aver, but to show that the words were so spoken. If the words have an uncertain signification, .and such as “require explanation by reference to some extrinsic matter to show that they are actionable, it must be shewn that such matter existed, and that the words related thereto.” And where words are actionable only because of their “effect on the plaintiff in his profession, trade, or business, there must be a distinct allegation that the plaintiff was at the time of the scandal, in such profession or exercising such calling.” 1 Chitty, 400, 401.

Lewis vs. Chapman, 17 Barb., 252 . Wadsworth vs. Bently, 22 Eng. Law and Eg. Rep., 176. 1 Phil.

Ev., 555. Looking to the words declared on here, we do not see that their import was such as to involve in any way the appellant’s trade or business, and certainly they are not laid in the declaration as so spoken. Even admitting that the ⁴¹⁷ words, as charged in these counts, were actionable, the proof admissible under the plea of limitations, does-not show that the appellee uttered them, or any words of precisely the same import. But, without discussing the question of variance, the prayer is objectionable, because it does not leave to the jury the finding of the fact that the words charged in these counts were spoken of and concerning the appellant in his trade or business; a defect fatal to the prayer, whether the fact of so speaking them was averred in the declaration or not.

The appellant’s 2nd prayer is also objectionable. In effect, it is an instruction to the jury, that the appellant is entitled to