Chace v. Sherman

• Decision Date: 10 January 1876
• Citation: 119 Mass. 387
• Parties: Albert F. Chace v. John Sherman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 387

Albert F. Chace v. John Sherman

Supreme Court of Massachusetts

January 10, 1876

Argued October 27, 1875 [Syllabus Material]

Bristol. Tort for slander. The counts relied on at the trial were the first and third. The first count was as follows:

"And the plaintiff says that on the thirteenth day of November 1873, he was the owner of a certain building, to wit, a saw-mill, at Swansey, in said county, and in use and occupation thereof; that said mill was insured, for the benefit of the plaintiff, against loss or damage by fire; that said mill or building was wholly destroyed by fire on or about the night of said thirteenth day of November; that afterwards the defendant publicly, falsely and maliciously accused the plaintiff of wilfully and maliciously burning the said building or mill, with the intent the insurers thereof to injure and defraud, by words spoken of the plaintiff substantially as follows: 'That damned cuss (meaning the plaintiff) burned his mill;' 'Albert Chace, he burned it, and every one around here thinks so,' 'or nearly every one.' 'He (meaning the plaintiff) burned it (meaning the said mill) because he was poor and wanted the money.'"

The third count was as follows: "And the plaintiff further says, that after said building or mill was consumed, as aforesaid, the defendant publicly, falsely and maliciously accused the plaintiff of wilfully burning said building or mill, insured as aforesaid, and as set out in the first count of the declaration, with intent to defraud the insurers thereof, in words spoken of the plaintiff substantially as follows: 'He (meaning the plaintiff) burned it (meaning said building or mill) because he (meaning the plaintiff) was poor and wanted the money,' thereby meaning the amount said building or mill was insured for."

The answer contained a general denial, and alleged that "there are no sufficient allegations in said plaintiff's writ and declaration of any matter or thing to constitute the substance of slander in form and manner."

At the trial in the Superior Court, before Aldrich, J., the only testimony put in by the plaintiff to prove the speaking of the words alleged was the following:

John A. Davis testified that on the morning after the mill was burned he had a talk with the defendant about the burning of the mill, and the defendant told him "he knew the mill would be burnt, and the mill was burnt, and Albert F. Chace burnt it to get his insurance."

James Baker testified that some time between the middle of November and December 1, 1873, he had a conversation with the defendant about the mill, and the defendant said, "The damned cuss set his mill afire to get his insurance; the damned cuss set it on fire to get his insurance for he had about spent his money."

James Barney testified that on January 1, 1874, he had a conversation with the defendant about the burning of the mill; that he asked the defendant how the mill was burned, and he replied, "That damned cuss burned it;" that he asked what damned cuss? and he said, "Albert Chace, he would have to fail if he did n't;" he also said the "mill was insured." "I said if it was insured he could not get the insurance money," to which the defendant replied, "he would look out about that." The witness also testified that in April of the same year, the defendant told him he would have him (the plaintiff) up for burning his mill and strip him.

The defendant asked the judge to instruct the jury as follows: "The words set out in the declaration must be, if not precisely, yet substantially proved. The evidence therefore must show the charge to have been made substantially as alleged so far even as the words are concerned. It cannot be shown that the same charge was made, but in another form, and in the use of substantially different language; [and there is no testimony in the case upon which the jury would be authorized to find that the words contained in said declaration have been so proved, so far as to constitute slander."]

The judge gave these instructions except the clause printed in brackets, which he declined to give, and gave other and full instructions, not objected to, upon all other parts of the case. The jury found for the plaintiff; and the defendant alleged exceptions.

Exceptions overruled.

J. M. Morton, Jr., for the defendant.

H. K. Braley, for the plaintiff.

Devens, J. Morton & Lord, JJ., absent.

OPINION

Devens, J.

The instructions requested by the defendant were given, except that there was "no testimony upon which the jury would be authorized to find that the words contained in said declaration have been so proved, so far as to constitute slander," which was refused.

The object of the mode of pleading prescribed by the Gen. Sts c. 129, is to inform the defendant, not only of the nature of the charge alleged to have been made by him, but of the language in which it was uttered; and it would not be competent to prove the same charge made by words substantially different from those set forth. Baldwin v. Soule, 6 Gray 321. Lee v. Kane, 6 Gray 495. Doherty v. Brown, 10 Gray 250. Payson v. Macomber, 3 Allen 69. Clark v. Brown, 116 Mass. 504. It is not, however, necessary to prove that the words were exactly those set forth in the declaration, but only substantially so, in order that it may appear that the crime was charged in the manner in which the plaintiff alleged it to have been charged. Baldwin v. Soule, ubi supra. ...