Blumhardt v. Rohr

• Decision Date: 26 March 1889
• Parties: BLUMHARDT v. ROHR.
• Court: Maryland Court of Appeals

17 A. 266

70 Md. 328

BLUMHARDT v. ROHR.

Court of Appeals of Maryland

March 26, 1889

Appeal from circuit court, Harford county; JAMES D. WATTERS, Judge.

Action by Charles Rohr against Charles G. Blumhardt for slander. Plaintiff was permitted to amend his declaration by adding the third and fourth counts. Plaintiff's third and fourth prayers for instructions were: "(3) If they find their verdict in favor of the plaintiff under either of the preceding instructions, the measure of damages is such an amount as in the opinion of the jury will compensate the plaintiff for the injury to his feelings and character occasioned by the words so spoken, and also for such injury as was the natural, direct, and reasonable consequence of such words, and they may also award exemplary and punitive damages as a punishment to the defendant. (4) The word 'malicious' in this form of action is not to be considered in the sense of spite or hatred against a person but as meaning that the party is actuated by improper and indirect motives other than the mere purpose of protecting the public health, or vindicating public justice." Defendant appeals.

Argued before MILLER, ROBINSON, IRVING, STONE, YELLOTT, BRYAN, and MCSHERRY, JJ.

Hanson P. Jordan, Rufus E. Jordan, Wm. H. Harlan, and J. Edwin Webster, for appellant.

T A. Seth, D. G. McIntosh, and S. A. Williams, for appellee.

IRVING J.

The appellee sued the appellant for slander. The narr. contained four counts, alleging in various words and forms 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 23d 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 presence and hearing of George 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 where condemned or diseased cattle are slaughtered,'--meaning thereby that the plaintiff kept such a slaughter-house, and that the plaintiff was slaughtering and selling the carcasses 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 business lost the trade and custom of the said Abraham Frank, and also a certain Ormand Hammond, Jr., and also divers other persons. (4) And for that on or about the 10th 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 Frederic 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. It is cheaper to buy the meat than bulls,'--meaning thereby that the plaintiff was slaughtering and selling the carcasses 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 Ormand 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.

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 offense; and that to make them actionable because of special damage they are not accompanied with 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 offense to sell diseased meat for human food. 1 Starkie, Sland. *39; 2 East, P. C. 821; 2 Whart. Crim. Law, § 1434; 4 Bl. Comm. 162. The offense was a misdemeanor, punishable by fine or imprisonment. Whether the punishment was of that character that under the decision of this court in Griffin v. Moore, 43 Md. 252, it would necessarily render it actionable per se, is not important for us here to decide; because the slander charged is of one engaged in business of 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. Folk. Starkie, Sland. 177, 178, where numerous authorities are collated in support of this rule; Dicken v. 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 of selling diseased meat for human food. It is not necessary to set out the offense 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 be understood to impute guilt, that will be sufficient." Peterson v. Sentman, 37 Md. 155; Odger, Sland. & Lib. 105, 106. And when the charge is made of a trader it need not be in positive language, but any words which will imply guilt are sufficient; and, if the words refer to trade, colloquium is unnecessary. 9 Bac. Abr. tit. "Slander," 52; Odger, Sland. & Lib. 120, 123. The narr. having alleged the plaintiff to be a butcher engaged in butchering and selling cattle, the ordinary and natural understanding of that term "butcher," as in common use, would be understood to be that he was killing and selling cattle for human food. No other idea would be natural. And certainly, when 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 proposed 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 those 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., but 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 uniform 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; 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 cannot 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., 75 to 100 before, and not more than 40 afterwards. The objections formulated in the exception are: "(1) Because it is an offer to prove special damages not alleged in the...