Fawsett v. Clark

Bowie, J., delivered the opinion of the Court. The appellee in this case sued the appellant in the Superior Court of Baltimore City, in an action for slander. The nar. contained three counts ; the first, charged the defendant with falsely and maliciously saying of the plain ⁵⁰¹ tiff, “ You are a thief.” The second count alleged, the defendant falsely and maliciously published of the plaintiff, the words following, viz., “ You are no better, than a thief.” And the third count charged, that the defendant intending to injure the plaintiff in his good name, etc., falsely and maliciously spoke and published of the plaintiff, the words following, that is to say, “ You are a confidence man,” thereby, and then and there meaning that he, the plaintiff had been and was guilty of obtaining by false pretence from some other person, some chattel, etc., with intent to defraud such person. The defendant pleaded “non cul.” At the trial the plaintiff, to maintain the issue joined on his part, testified in his own behalf that he was a cattle dealer at Calverton Drove Yards; that in the spring of 1875, Messrs.

Baugher & Redsecker, proprietors of the Calverton Drove Yards failed, and the plaintiff succeeded them in the fall of 1875 ; that he bought from Baugher with defendant’s approval, a quarter interest in two trotting horses, in which Fawsett had an interest, and had authority from Baugher to settle the earnings of the horses with Fawsett, who had the management of the horses ; Fawsett gave a statement and plaintiff asked for an itemized acJ count which Fawsett gave; which did not contain an item of $100 for cash paid one Doty for driving; he then gave another account containing this item, and exceeding the former account by at least $1000 for the same period ; the plaintiff then wrote to Doty to inquire if the charge- of $100 was correct, and also wrote to others. Doty sent plaintiff’s letter to Fawsett. Witness further testified, that on Tuesday, before the 24th May, 1876, it being market morning, a number of persons about, he was at Calverton Hotel when Fawsett came in, handed witness Doty’s letter and asked witness if he had written it, and why; witness told him, “ Because he had a right do it;” Fawsett said, ‘c that if he had been at home when he received the letter ⁵⁰² he would have cowhided witness “said I was a liar,” “ said I was a confidence man,” “ no better than a thief”— “ yes, a thief,” etc. Several other witnesses were called on the part of the plaintiff. John Winyard testified, that he heard, on the occasion in question Eawsett call Clark a liar and a thief, said he would steal and rob.

On cross-examination he said, Eawsett had a letter, and asked him Clark if he wrote it; Eawsett said, Clark had acted like a thief; he said that in connection with that letter. S. D. Hawkins, in his examination-in-chief by plaintiff, testified “ Eawsett walked over to Clark, shewed him the letter ; asked him if he had written it, said no gentleman would have written such a letter ; told him that he was a “ confidence man,” “ no better than a thief,” said “ he was a thief,” or “ no better than a thief.” Being cross-examined, this witness said, that the whole quarrel had reference to the letter. The substance of what Eawsett said to him was, you have charged me with malting false accounts. The defendant was examined in his own behalf, and deposed substantially to the same facts, saying “that the letter caused all that was said, there was no other trouble between them.” The appellant offered five prayers, the first four were rejected, and the fifth conceded.

The appellee submitted one prayer which was granted. The appeal is taken from these rulings below. Omitting the second of the appellant’s series, (which was not insisted on in this Court,) they all maintain the proposition, that the words spoken, though actionable “per se,” if spoken in relation to a subject as to which no larceny or felony was capable of being committed, or was committed, the charge will not be actionable. The first prayer was refused absolutely, the third and fourth upon the ground that there was no evidence to ⁵⁰³ sustain them ; from which it might be inferred that if there had been in the judgment of the Court below, evidence tending to show the words were used in relation to the letter, or the matters contained in it, those prayers would have been granted.

The doctrine of the elementary writers on slander is, that words should be construed in reference to the subject-matter — “ Words may import a charge of felony, yet if it appear that the fact charged could not have happened, an action cannot be maintained.” Snagg vs. Gee, 4 Co., 16 (a,) 2 Bing. N. C., 402 ; Stephens’ Nisi Prius, 2553. Lord Hobart says, “the slander and damage consist in the apprehension of the hearers ; and in Gilbert’s Oases on Law & Equity, the rule laid down is, that the words shall be taken in the sense in which the hearers understood them.” Ibid; vide also, 1 American Leading Cases, Hare