Darling v. Clement

• Decision Date: 31 January 1897
• Parties: DARLING v. CLEMENT.
• Court: Vermont Supreme Court

37 A. 779

69 Vt. 292

DARLING

v. CLEMENT.

Supreme Court of Vermont. Orange.

Jan., 1897.

Exceptions from Orange county court; Ross, Chief Judge.

Action by Eugene R. Darling against O. C. Clement for slander. From an order adjudging the first and second counts of plaintiff's petition insufficient, plaintiff brings exceptions. From an order adjudging the third count sufficient, defendant brings exceptions. The judgment with reference to the first count reversed. Judgment that the second count was insufficient, and the third count sufficient, affirmed.

Darling & Darling, for plaintiff.

R. M. Harvey and John H. Watson, for defendant.

ROWELL, J. The words declared upon in the first count are: "I will sue him (innuendo, the plaintiff) for stealing lumber from my land. One day Gene Darling wanted some wood; so he ordered Mel. Dickinson to get some. Mel. asked Darling where he should get it. Darling said, 'Down by element's, near the swamp.' Then Mel. said, 'if you want to get wood from Clement's place, you better get some one else to get it,' Then Darling said, 'That is all right; we often get wood from there' (innuendo, meaning and insinuating thereby, and by the hearers understood to mean and insinuate, that the plaintiff had been guilty of stealing wood from the lands and premises of the defendant)." It is claimed that this language is not actionable per se, for that the words, "I will sue him for stealing lumber from my land," are so qualified by the subsequent words that, taking them together, they do not impute larceny, but only a trespass, as they must be understood to mean wood growing and not cut down, and therefore not the subject of larceny; and that, as there is no prefatory averment diverting the meaning to a felonious taking, the innuendo is too large, as it undertakes such diversion, which is beyond its function. On the other hand, some claim is made that the subsequent words stand by themselves, and are not the reason of the former speech, nor any diminution of it, but merely in addition to it. It is true, when the actionable quality of the words arises from circumstances extrinsic of them, a prefatory averment is necessary to show that such circumstances existed, and to connect the words with them. But when the actionable quality inheres in the words themselves, and does not arise from extrinsic circumstances, no prefatory averment is necessary. The innuendo may then ascribe the meaning claimed, and it is for the jury to determine the truth of the innuendo if the words are capable of the meaning ascribed. Van Vechten v. Hopkins, 1 Am. Lead. Cas. (4th Ed.) 140. Here, we think, the actionable quality inheres in the words themselves, taken together, and that no extrinsic facts are necessary to develop the imputation of larceny. At one time, before Lord Holt's day, the rule in actions of slander was that the words should be construed in mitiori sensu, the object being to discourage litigation. Afterwards, in some of the cases, it was said that the words should be taken in malam partem, the policy being to afford legal remedy, and thereby prevent violent redress. But the rule now is that the words are to be taken in their plain and natural meaning, and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used, and the ideas they are adapted to convey to those who heard them; that is to say. the ordinary signification of the words and the understanding of the hearers fix the meaning in slander. Van Vechten v. Hopkins, 1 Am. Lead. Cas. (4th Ed.) 131.

Now, the natural and most obvious meaning of the word "steal" is the felonious taking of property, or larceny. But it may be qualified by accompanying words, so as to show that such was not the meaning. Thus, to say of me, "He stole apples from my trees," imputes a trespass, not larceny, and the words are not actionable; otherwise to say, "He stole apples from my bin." But the word "stealing," in the language here declared upon, is not thereby qualified so as to take away the prima facie imputation of larceny, which he (defendant) may disprove by bringing forward matters of fact to show that such was not the imputation. The stealing of wood from the lands and premises of the defendant is the imputation alleged. One definition of the word "wood" is "the hard substance of a tree or shrub as cut for use." This is its most common meaning. The old maxim is, "Arbor dum crescit, lignum cum crescere nescit;" a tree while it grows, wood when it cannot grow,— that is, when it is cut down. Thus, in Minors v. Leeford, Cro. Jac. 114, the court thought the words, "Thou hath stolen a tree," not actionable, for "arbor dum crescit"; while in Lo v. Sanders, Id. 168, the words, "Thou hath stolen my wood," were held actionable, for "lignum cum crescere nescit." "You stole my boxwood, and I can prove it," are actionable, for they may be understood to impute felony. Baker v. Pierce, 2 Salk. 695, but better reported in 6 Mod. 237. Short's Case, Noy, 114, is this: "Thou hast, stolen my timber" are actionable, for they shall not be intended of trees growing, for, by the whole court, they are then timber trees. In Drake v. Whiteacre, Style, 24, the words were, "Margaret Whiteacre (innuendo, the plaintiff) did steal my wood, and I will send her to Bridewell." After verdict for the plaintiff, it was moved in arrest that the words were not actionable, for doubtful words as these ought to be taken in mitiori sensu, and "wood" here might be understood standing wood, and not wood cut down, and so it could not be theft, but a trespass. On the other side, it was answered that "wood" should be understood wood cut down, and not standing, and, being coupled with the words, "Margaret Whiteacre is a thief," which are felonious words, they should be interpreted equally felonious. Ayrye v. Higgens, 2 Rolle, 380, was cited to prove it, where it was adjudged that the words, "He is a thief, and hath stolen my corn," should be understood of corn cut down, and not standing, and therefore actionable. Rolle, J., said it was a strong case that the action would lie; but he arrested judgment till it was moved again, when the court held that the first words were actionable, but whether coupled with the other words they were actionable the court was divided,— Bacon against the action, and Rolle for it. In Phillips v. Barber, 7 Wend. 439, the words, "You have stolen my wood," were held actionable We hold, therefore, that the first count is good.

The second count is bad for duplicity. It declares upon three sets of words, spoken at different times on the same day, to the same persons, concerning different subjects, namely, the plaintiff's habitual intemperance, his lack of riches, with many...