Brown v. Rouillard

• Decision Date: 28 December 1917
• Citation: 102 A. 701,117 Me. 65
• Parties: BROWN. v. ROUILLARD.
• Court: Maine Supreme Court

102 A. 701

117 Me. 65

BROWN.

v. ROUILLARD.

Supreme Judicial Court of Maine.

Dec. 28, 1917.

Exceptions from Supreme Judicial Court, Somerset County, at Law.

Action by Leslie J. Brown against Jennie Rouillard. A demurrer was sustained, and plaintiff brings exceptions. Exceptions overruled, and demurrer sustained.

Argued before CORNISH, C. J., and SPEAR, KING, BIRD, HANSON, and MADIGAN, JJ.

Merrill & Merrill, of Skowhegan, for plaintiff.

Fred F. Lawrence, of Skowhegan, for defendant.

MADIGAN, J. This is an action for slander; the declaration reading as follows:

"For that the said Jennie Rouillard, at said Skowhegan, fraudulently and maliciously contriving and intending to injure, blacken, and defame the said Leslie J. Brown, in his good name and reputation, on the 4th day of September, A. D. 1916, and there, on divers days and times between that day and the day of the purchase of this writ, in certain other discourses which the said defendant then and there had with divers good citizens of this state of and concerning the said Leslie J. Brown, did fraudulently, falsely, maliciously, openly, and publicly charge the said Leslie J. Brown with the crime of burning his own property to defraud his insurers, in the presence and hearing of the said citizens, by which false and malicious charge and accusation the said Leslie J. Brown has been greatly injured and prejudiced in his good name, character, and reputation, and has been and is exposed to a prosecution for said crime. and has undergone great pain, distress, and trouble of mind and body, and has otherwise been greatly injured, to the damage of said plaintiff (as he says), the sum of $2,000, which shall then and there be made to appear with other due damages."

In response to the order of court the plaintiff filed the following specification:

"The words you burned your buildings' is the language claimed to have been uttered by the defendant relied upon as being actionable."

The defendant thereupon filed a special demurrer claiming that the declaration and specifications set forth no legal cause of action. The case is before the court on exceptions to the ruling of the presiding justice sustaining the demurrer.

It. is well settled that the specification is practically an amendment to the declaration and the two must be considered together.

A specification must particularly "state the ground of claim, the gist of the action. It limits the proof, and restricts the right of recovery to that claim." Gooding v. Morgan, 37 Me. 423.

"The claim of the plaintiff is restricted and his right to recover limited by his specification." Carson v. Calhoun, 101 Me. 456, 64 Atl. 838; Smith v. Kirby, 10 Mete. (Mass.) 150.

"A bill of particulars should give as much information as a special declaration, so that the defense may know the real ground of the action." Babcock v. Thompson, 3 Pick. (Mass.) 446, 15 Am. Dec. 235.

"A bill of particulars is an amplification of more particular specification of the matter set forth in the pleading. The declaration, plea, or notice of set-off, may be so general in its terms that the opposite party will not be fully apprised of the demand which will be set up on the trial, and he is therefore permitted to call on his adversary to give a more detailed and particular statement of the claims on which he intends to rely. When the bill is furnished, it is deemed a part of the declaration, plea, or notice to which it relates, and is construed in the same way as though it had originally been incorporated in it."

Another court states the principle thus:

"Specifications or bills of particulars are of the nature of amendments of the declaration. They become part of the record only by the allowance or order, actual or presumed, of the court. * * * The defendant may apply to the court to order a specification in cases where, from the indefiniteness of the declaration, ho is uncertain what claim in particular is designed to be insisted upon, and the court may order a specification to be filed forthwith, or at a specified time. And the specification, being filed in pursuance of such order, becomes a part of the declaration and of the record, and may be treated as such in the pleadings." Benedict v. Swain, 43 N. H. 33.

One furnishing "a bill of particulars under it [an order of court] must be confined to the particulars bp has specified as closely and effectually as if they constituted essential allegations in a special declaration." Commonwealth v. Giles, 1 Gray (Mass.) 466, 469.

In its original form the writ alleged the charge of crime which being actionable per se the allegation was sufficient. Kimball v. Page, 96 Me. 487, 52 Atl. 1010; True v. Plumley, 36 Me. 477.

But as amended it charges the uttering of words, harmless in themselves, and which could only be slanderous when united by the hearers with facts and circumstances, which together with the uttered words conveyed a charge of crime. Averments sufficiently full and complete to set forth such facts and circumstances are essential to support a charge of slander when the words, as in this case, are harmless or of doubtful import

"Words cannot be regarded, upon demurrer to the declaration, as actionable, unless they can be interpreted as such, with at least a reasonable certainty. In case of uncertainty as to the meaning of expressions of which a plaintiff complains," he must "make the meaning certain by means of proper colloquium and averment. It is always within his power to do so." Wing v. Wing, 66 Me. 62, 22 Am. Rep. 548.

"In Emery v. Prescott, 54 Me. 389, plaintiff brought an action of libel on the ground that the article suggested he should be carried back to Thomaston where he came from. The innuendo alleging that the article intended to convey the charge that the plaintiff had been an inmate of the state's prison, the court says, 'in the absence of any introductory matter, by the way of explanation, carrying him back to Thomaston, would be no more libelous than carrying him back to any other town.' Nor does the innuendo that Thomaston means the state's prison situated in the town of Thomaston,...