Haines v. Campbell

Bryan, J., after stating the case, as reported, delivered the opinion of the Court. Eo objection has been stated to the first count, nor have we perceived any. In the second count it was alleged that the defendant spoke these words of and concerning the plaintiff: “I threw the burning of William Witman’s barn into Campbell’s face.” The words without some prefatory explanation would, convey no meaning sufficiently definite for the. action of a Court of justice. The count, however, sets forth that Witman was the owner of a farm in the State of Pennsylvania, upon which there was a barn, not adjoining any dwelling-house, and in the barn there were hay and grain; that the barn had been destroyed by burning; “that at the time of the said burning, and thence hitherto, by the law of said State, any person who maliciously and voluntarily burns any barn having hay or grain therein, although the same shall not be adjoining to any dwelling-house, shall, upon legal conviction thereof, be sentenced to undergo solitary confinement in the Eastern or Western Penitentiary of said State, at labor, for a period of not less than one, or more than ten years for the first offence, and not more than fifteen years for the second offence.” It was then alleged that the defendant falsely and maliciously spoke and published of the plaintiff in relation to the burning of the barn, the words above mentioned.

The Court is thus informed of the fact of the burning and its penal consequences, if maliciously and voluntarily done. These statements in the technical language appropriate to the action of slander are called the averment. The colloquium is the conversation or discourse in relation to the extrinsic facts embraced in the averment. The innuendo is the statement that the defendant meant that “he, the plaintiff, had committed the crime of maliciously and voluntarily burning the said barn of the said Witman in the State ¹⁶² of Pennsylvania.” In Dorsey vs. Whipps, 8 Gill, 463 , it is said “if the words in themselves are not actionable, their meaning cannot be extended by it, (theinnuendo,) to make them actionable.

If the words may be understood in a sense not criminal, there must be'a colloquium in the introductory part, to show they were spoken in a criminal sense, or they are not actionable. The office of the innuendo is to explain doubtful words, where there is matter sufficient in the declaration to maintain the action.” Sheely vs. Biggs, 2 H. & J., 364 . Again, “an innuendo cannot extend the sense of the words beyond their own meaning, unless something be put upon the record for it to explain.” 1 Starkie on Slander, 422; Jones vs. Hungerford, 4 G. & J., 402 . And in Peterson vs. Sentman, 37 Md., 155 , it is said “words that are not actionable ex vi termini cannot be made so by an innuendo, but must be aided by a proper averment and colloquium, which will warrant the explanatory meaning given them by the innuendo.” But if the words are capable of the meaning attributed to them in the innuendo, as explanatory of the previous part of the declaration, it must be left to the jury to find whether they were in fact so understood by the persons who heard them.

The words “I threw the burning of William Witman’s barn into Campbell’s face,” under the circumstances alleged in the second count, are certainly capable of meaning that Campbell maliciously and vlountarily burnt Wit-man’s barn; and if so, they are actionable. The third count contains the same averment and colloquium as the second. The defamatory words charged are these: “While I did not tell Campbell that he burnt Witman’s barn, I gave him to understand that his nearest neighbors believed that he did.” The innuendo is the same as in the second count. If words spoken convey an imputation of crime, they are actionable in whatever mode their meaning may be expressed; they may be ¹⁶³ •by way of insinuation, interrogation, by ironical praise, or by any form, of speech understood by the hearers.

We think that the words charged in this third count are sufficient to maintain the innuendo. In the fourth count the averment, colloquium and words charged are the same as in the third. The innuendo is thus set forth: “meaning thereby that the plaintiff's neighbors charged that he, the plaintiff, was guilty of the crime of maliciously and ‘voluntarily burning the said barn of the said Witman." These words disparage the character of the plaintiff, and convey an imputation of crime, and must impose liability on the defendant for uttering them, unless there be some impunity for the repetition of slander. At one time, it was held on the authority of Earl of Northampton’s Case, 12 Coke, 134, that if a person repeated a slander, and mentioned at the same time the name of the person from whom he heard it, he would have a good defence to an action brought against him.

This doctrine has been very much questioned and criticised by eminent Judges, both in England and America, and has finally been entirely overthrown. In McPherson vs. Daniels, 10 Barnewall & Cresswell, 263, Bayley, Judge, said: “By repeating slander, a person, although he state at the time that he heard it from another, gives it a degree of