Curry v. Collins

• Decision Date: 28 February 1866
• Parties: JAMES W. CURRY, Appellant, v. THOMAS H. COLLINS, Respondent.
• Court: Missouri Supreme Court

37 Mo. 324

JAMES W. CURRY, Appellant,

v.THOMAS H. COLLINS, Respondent.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Worth Circuit Court.

The petition was as follows:

“Plaintiff states that on the 6th day of June, A. D. 1865, at the county of Worth aforesaid, the defendant, in the presence and hearing of divers citizens of said county, maliciously spoke of and concerning the plaintiff the following false and slanderous words, that is to say: ‘I (meaning the defendant) was yesterday insulted by a buskwhacker, and James W. Curry (meaning plaintiff) was the man.’‘A bushwhacker insulted me (meaning defendant), and Curry (meaning plaintiff) was the man.’‘I (meaning defendant) was insulted by James Curry (meaning plaintiff), a bushwhacker.’‘James W. Curry (meaning plaintiff) is a bushwhacker. ‘I (meaning defendant) was insulted by a bushwhacker, and James W. Curry (meaning plaintiff) is the man.’‘A bushwhacker insulted me (meaning defendant) yesterday, and James W. Curry (meaning plaintiff) is the man.’ Defendant thereby then and there intending to charge and did charge plaintiff, to the understanding of the said citizens then and there hearing the said words as aforesaid of being a bushwhacker, and of being an enemy to his government and country, and of being guilty of the crimes of murder and robbery. Wherefore plaintiff says, that, by the speaking of said false and slanderous words by defendant, he is damaged to the amount of five thousand dollars, and for which he asks judgment.”

To this petition a demurrer was sustained.

Richardson, for appellant.

Dixon and Vories & Vories, for respondent.

I. The petition contains no averment, except that the defendant, on the 6th day of June, 1865, called the plaintiff a “bushwhacker.” As the true meaning of the term cannot per se impute a crime, inuendoes cannot enlarge its meaning so as to make it actionable. An inuendo cannot extend the sense of the words beyond their own meaning, unless something be put upon the record for it to explain. (Vanvechten v. Hopkins, 5 Johns. 220; McClaargry v. Wetmore, 6 Johns. 83; Thomas vs. Crasswell, 7 Johns. 271.)

Again, if the words do not naturally and per se convey the meaning the plaintiff would wish to assign to them, or are ambiguous or equivocal, and require explanation by reference to some extrinsic matter to show that they are actionable, it must be expressly shown that such matter existed, and that the slander related thereto. (Chit. Pl., 10 Am. ed., 400; 8 East. 431; 9 East. 93; 13 East. 554; 2 Pick. 320; 15 Wend. 327.)

To call a person a “bushwhacker,” or to say he is a “bushwhacker,” is not slanderous and therefore not actionable, without an averment or colloquium that the term was synonymous, and was so understood to be, with murderer, robber, traitor, or the perpetrator of some other infamous crime. Such averment or colloquium is matter of proof upon the trial, while an inuendo is nothing but a mere explanation of the colloquium and slanderous words as understood by the plaintiff. (Niven v. Munn, 13 Johns. 48; Hopkins v. Beedle, 1 Caines, 347; Ward v. Clark, 2 Johns. 10; Chapman v. Smith, 13 Johns. 68; Crookshank v. Gray, 20 Johns. 344; Adams v. Hannon, 3 Mo. 160; Dyer v. Morris, Mo. 214; Palmer v. Hunter 8 Mo. 512.)

As the plaintiff does not demand special damages, he relies upon the words being actionable in themselves. Words cannot be actionable in themselves unless they imply guilt of some offence for which the plaintiff might be punished by the criminal courts, or that he has a disease that renders him unfit for society. (3 Bouv. Law Dict. 528; 1 Hill on Torts, 401; 1 Stark. on Sland. 390.)

II. The petition is manifestly defective in this, to-wit:--As an inuendo cannot enlarge or change the meaning of the words, and is not an averment, but the mere opinion of the plaintiff as to the meaning of the words, the petition ought to contain an averment that the words were spoken by the defendant with the intent to charge a particular crime. See Andrews v. Woodman, 15 Wend. 232, and 1 Stark. Sland. 390, n., where the Court say--“So, where, from the ambiguity of the terms used in reference to the offence charged, the words have a covert meaning, to render the declaration good, it must be averred that they were spoken with the intent to charge a particular crime, the difficulty cannot be obviated by an inueudo.”

The words, “you are a bogus peddler,” without any averment showing the meaning of the term, are not actionable. (Seney's Ohio Code, 166.)

As the term “bushwhacking” is used in our Constitution, it will not bear the construction given to it by plaintiff's inuendo, for it defines bushwhacking as a “description of marauding.”

The rule is, that words imputing a charge which, if true, would subject the party charged to indictment for a crime involving moral turpitude, or subject him to an infamous punishment, are actionable in themselves. If they fall short of this test, they are not actionable merely as imputing an offence, but special damages must be shown. (Brooker v. Coffin, 5 Johns. 188.) And this is the rule re-asserted in Widing v. Oyer, 13 Johns. 124; Martin v. Stillwell, Id. 275; Burch v. Nickerson, 17 Johns.; Case v. Buckley, 15 Wend. 327; Bissell v. Cornell, 24 Wend. 354; Young v. Miller, 3 Hill, 21; Chase v. Whitlock, Id. 139; Crawford v. Wilson, 4 Barb. 504; Pike v. Van Wormer, 5 How. 171.

HOLMES, Judge, delivered the opinion of the court.

This was an action of slander. There was judgment upon demurrer for the defendant. The substance of the petition was, that the defendan in the presence and hearing of divers citizens, maliciously spoke of and concerning the plaintiff the following false and slanderous words, that is to say, “I (meaning the defendant) was yesterday insulted by a bushwhacker, and James W. Curry (meaning the plaintiff) was the man”; and the same is repeated in various forms, the amount of the whole being that the defendant called the defendant a bushwhacker; thereby intending to charge the plaintiff, to the understanding of said citizens, with being a bushwhacker and an enemy to his government and country, and with being guilty of the crimes of robbery and murder; and damages are claimed to the amount of five thousand dollars. The ground of the demurrer was that the petition did not state facts sufficient to constitute a cause of action. The specified objection relied upon seems to be that the words are not in themselves actionable, and that there should have been some averments, by way of inducement, for the purpose of showing that the word “bushwhacker” was used in a sense that would impute to the plaintiff some indictable offence involving moral turpitude, or some infamous corporal punishment.

Since the statute, (R. C. 1855, p. 1240, § 55) there need be no colloquium of extrinsic facts for the purpose of showing the application of the defamatory matter to the plaintiff, more than that the words were spoken of and concerning him. (Stieber v. Wensel, 19 Mo., 513.) And when the slanderous words are actionable in themselves, it is not necessary...