Dillard v. Collins

• Decision Date: 24 September 1874
• Citation: 66 Va. 343
• Parties: DILLARD v. COLLINS.
• Court: Virginia Supreme Court

66 Va. 343

DILLARD v. COLLINS.

Supreme Court of Appeals of Virginia.

September 24, 1874

1. In an action of slander, a plea that since the commencement of the action the plaintiff has been adjudicated a bankrupt, is not a good plea.

2. Under the English bankrupt act and the bankrupt act of 1841 and the present act, the rights of action which are transferred to the assignee do not include claims for personal damages.

3. The rights of action transferred to the assignee are rights of action founded upon beneficial contracts made with the bankrupt, where the pecuniary loss is the substantial and primary cause of action, and for injuries affecting his property, so far as they do not involve a claim for personal damages.

4. An assignee in bankruptcy, in many respects, stands in the same relation towards the bankrupt's estate as that of an executor towards the personal estate of his testator.

5. The proper and reasonable construction would seem to be that the statute transfers all such rights of action as would be assets in the hands of an executor for the payment of debts and no others.

6. In every instance of slander, whether verbal or written, malice is an essential ingredient, and must be averred. But when averred, and the language, verbal or written is proved, the law will infer malice, until the proof, in the event of denial, be overthrown, or the language itself satisfactorily explained.

7. Confidential or privileged communications are an exception to this rule; and in such a case the burden is on the plaintiff to prove malice.

8. Confidential or privileged communications are of four classes: 1st. Where the author or publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. 2d. Anything said or written by a master in giving the character of a servant who has been in his employment. 3d. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4th. Publications duly made in the ordinary mode of parliamentary proceedings.

9. These excepted instances so far change the ordinary rule with respect to slanderous or libellous matter, as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or in the situation of the parties, adequate to authorize the conclusion.

10. R G and J rented land of D. They were strangers in the neighborhood. C lived on his farm in the same neighborhood. On several occasions D told R, G and J that C and all his sons were horsethieves, and made their living by that means and that they frequently harbored that kind of men. There is nothing in the relation of landlord and tenants between D and R, G and J, which raises any presumption in favor of D, that the words were spoken without malice, or brings them within the class of privileged communications.

11. On a trial in an action for slander by C against D, the slanderous words having been proved, D will not be allowed to prove by his own testimony what were his feelings and motives in making the charge, whether with any ill will against C, or only for the protection of his own interests.

12. A deposition is taken to be read on a trial at law, and the witness is asked if he was acquainted with the general character of C, the plaintiff, for honesty. If so, state what it was and is. To which he answered, as far as he could see he did not see anything against the man. He never heard anything against him by any man except by D, the defendant. To this answer the defendant excepted generally. On the cross-examination it appears that witness did know enough of C's general character to authorize him to speak of it. The exception of the plaintiff should have stated the grounds of his objection to the answer. And it appearing fro the whole deposition that the witness was competent to speak as to the character of C, the answer will not be stricken out.

13. In an action for slander, the defendant cannot enquire into the social intercourse of the plaintiff with his neighbors. And where the slander charged is for horse-stealing, the defendant cannot introduce evidence of rumors as to the plaintiff or his sons having stolen a hog.

This was an action for slander in the Circuit court of Albemarle county, brought by Zachariah Collins against George W. Dillard. The slander charged is, that Dillard spoke of Collins as follows: " He and all his sons are horse-thieves, and make their living by that means, and that they frequently harbored that kind of men." The defendant pleaded " not guilty," and also a special plea of justification; on which issues were taken.

The cause came on for trial in October 1869, when the jury found for the plaintiff, and assessed his damages at $500; and there was a judgment according to the verdict. The defendant thereupon applied to a judge of this court for a supersedeas to the judgment; which was awarded. The case is sufficiently stated by Judge CHRISTIAN in his opinion.

Wm. J. Robertson and Blakey, for the appellant.

T. J. Michie and H. B. Michie, for the appellee.

OPINION

CHRISTIAN, J.

This was an action of slander and is before us upon a writ of error to a judgment of the Circuit court of Albemarle. The first error assigned in the petition, is the refusal of the court to permit the defendant to file a plea alleging that since the action was brought the plaintiff had been adjudicated a bankrupt. The court is of opinion that there was no error in rejecting the plea. It has been held in numerous decisions, English and American, that under the English bankrupt acts and the act of congress of 1841, the rights of action which are transferred to the assignee, do not involve claims for personal damages. They are rights of action founded upon beneficial contracts made with the bankrupt where the pecuniary loss is the substantial and primary cause of action, and for injuries affecting his property, so far as they do not involve a claim for personal damages.

A right of action, such as slander, which is merely personal, and dies with the party, is not transferred to the assignee. The assignee, in many respects, stands in the same relation towards the bankrupt's estate as that of an executor towards the personal estate of his testator. The proper and reasonable construction would seem to be, that the statute transfers all such rights of action as would be assets in the hands of an executor for the payment of debts, and no others; all which could be turned to profit; for such rights of action are personal estate. Of such, the executor is assignee in law; and the nature of the office and duty of a bankrupt's assignee, requires that he should have them also. But rights of action for torts, which would die with the testator, according to the rule actio personalis moritur cum persona, and all action affecting the person only would not pass. James' Bankrupt Law, pp. 38, 39, and cases there cited.

The learned counsel for the appellant concedes in his argument, that it is clear that if the question had arisen under the English bankrupt act, or under the act of congress of 1841, the plea would have been properly rejected. But he insists that the words choses in action being inserted in the present act, and those words not being found in the former acts referred to, gave to the present act a wider scope and larger signification. We do not concur with the learned counsel in this interpretation. The words " choses in action" mean nothing more and can have no broader signification than the words " rights of action," and it has been uniformly held that these latter words, " rights of action," only include rights of action founded on contracts, or for injuries to property, and not rights of action for torts, which are purely personal, such as the action for slander, which dies with the person, and never survives to the personal representative. This interpretation of the present act seems to have received judicial sanction in the Circuit courts of the United States. See Bump on Bankruptcy, (6th ed.) 357; 5 B. R. 152; 3 C. L. N. 297.

The court is therefore of opinion that the Circuit court did not err in rejecting the plea of bankruptcy.

The court is further of opinion that the words charged in the declaration, and proved to have been spoken by the defendant, were not, under the circumstances, such as fall within the class of confidential or privileged communications. The words charged in the declaration were as follows: " He (the plaintiff) and all his sons are horse thieves, and make their living by that means, and that they frequently harbored that kind of men." Four witnesses testify that these words were spoken to them substantially as laid in the declaration. Three of them lived upon lands rented of the defendant, and were the near neighbors of the plaintiff. One of them lived at the mill, being the miller of the defendant.

One of these witnesses (Thomas J. Rowland) says in answer to the question, " Did the defendant make any statement to you and the Shropshires in regard to the plaintiff about horse-stealing? " He did at different times. I do not recollect how often. He said that Mr. Collins and his boys were horse thieves, and that they were connected with that class of men, and I had better be careful and not make any acquaintance with them, that their bad character might injure my character; that there would come strangers there frequently in the back way in a very suspicious manner, and leave in the same way, and in a day or two there would be horses missing from the...