Fawsett v. Clark

• Decision Date: 02 May 1878
• Parties: ASBURY FAWSETT v. JAMES CLARK.
• Court: Maryland Court of Appeals

48 Md. 494

ASBURY FAWSETT v. JAMES CLARK.

Court of Appeals of Maryland

May 2, 1878

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

First Exception.--At the trial the plaintiff offered the following prayer:

That if the jury shall find for the plaintiff upon any count in the declaration, they are not limited as to the amount of damages they may assess to the actual damage which the plaintiff may have sustained, but may assess exemplary damages by way of punishment to the defendant, for the wrong and indignity put upon the plaintiff by applying to him the words charged in such count.

And the defendant offered the five following prayers:

1. If the jury believe from the evidence that the alleged slanderous words were uttered by the defendant as alleged but were so uttered solely in reference to the plaintiff's conduct in writing the letter to Doty, spoken of in the evidence, and were not intended, and were not understood by the bystanders to charge the plaintiff with having committed a felony, then the plaintiff is entitled to nominal damages merely.

2. If the jury believe from all the testimony in the case, that the defendant, in uttering the alleged slanderous words, provided they find such utterance, was not actuated by malice in fact then the plaintiff can recover nominal damages merely.

3. If the jury believe from the evidence, that the alleged slanderous words were uttered by the defendant as alleged but were so uttered solely in reference to the plaintiff's conduct in writing the letter to Doty, spoken of in the evidence, and were not intended to, and were not understood by the bystanders, to charge the plaintiff with having committed a felony, or other crime punishable corporally, then the plaintiff is not entitled to recover.

4. If the jury believe that the defendant uttered the words "confidence man," in reference to the plaintiff, meaning thereby to impute to plaintiff, the commission of no crime or felony, and that said words were meant and understood to charge the plaintiff with being a man who abused one's confidence after obtaining it, by professing to be a friend, then the plaintiff cannot recover for the utterance of said words in this action.

5. The jury in order to find for the plaintiff under the third count of the declaration, must not only find that the defendant uttered the words, "you are a confidence man," in regard to the plaintiff, but that he was understood by the bystanders thereby to charge that the plaintiff had been, and was guilty of obtaining by false pretence from some other person, some chattel, money or valuable security, with intent to defraud such person of the same.

The Court, (DOBBIN, J.,) granted the plaintiff's prayer and rejected the first, second, third and fourth prayers of the defendant, the third and fourth being rejected on the ground of want of evidence to sustain them. The defendant's fifth prayer was conceded.

The defendant excepted.

The jury rendered a verdict for $1000 for the plaintiff, and judgment was entered for the same, with interest and costs. The defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, STEWART, MILLER and ALVEY, J.

William Rowland, for the appellant.

The defendant's first and third prayers should have been granted, as they embody a proposition which is clear law.

If words are actionable, yet if spoken and understood as referring to facts which cannot constitute an offence, no action can be maintained. Van Rensselaer vs. Dole, 1 John. Cases, 279; Stone vs. Clark, 21 Pick., 53; Carter vs. Andrews, 16 Pick., 3; Dexter vs. Taber, 12 John., 239: Norton vs. Ludd, 5 N. H., 204; Smith vs. Miles, 15 Vt., 245; Williams vs. Cawley, 18 Ala., 206; 6 Rob. Pr., 951; Quinn vs. O'Hara, 2 E. D. Smith, 388; Robinson vs. Keyser, 22 N. H., 324.

The testimony of Winyard, Hawkins and Fawsett was before the jury, to decide how the alleged slanderous words were uttered or understood, and was abundantly sufficient to support these two prayers.

The defendant's fourth prayer ought to have been granted. It covers the third count, in which the words are not actionable in themselves, and therefore, required a colloquium. It was, therefore, for the jury, from the facts of the case, to decide whether the words, "you are a confidence man," were used in the sense imported in the colloquium, and were so understood by the hearers, and were, therefore, actionable-- Peterson vs Sentman, 37 Md., 140; Randall vs. Butler, 7 Barb., 260; Atkinson vs. Scammon, 22 N. H., 43--otherwise it would have been necessary to have averred in the colloquium, that the words "confidence man" had, by usage, acquired such a signification as to impute a definite offence, and were so understood by the hearers. Pike vs. Van Wormer, 5 How. Pr. R., 175.

There is no pretence that the words have acquired, by usage, such a signification. The plaintiff relied on the use of the words in the sense set out in the third count. The prayer is simply to the effect, that if such sense was not intended by defendant, then the plaintiff cannot recover for the use of such words, "confidence man."

The granting of the plaintiff's prayer was erroneous. It assumed that the plaintiff had a right to recover under the third count. It is submitted that there is no evidence in the cause, under which the plaintiff could recover under this third count. Because there is no proof that the defendant used the words "confidence man" in the special sense charged in the third count. The plaintiff's prayer therefore, was erroneous in so far as it assumed the plaintiff's right to recover under the third count.

John S. Tyson, for the appellee.

The defendant's first prayer was rightly rejected.

1st. Because if "the alleged slanderous words were uttered by the defendant as alleged," i. e. "falsely and maliciously," this constitutes the whole gist of the action for slander, and negatives every defence. 2 Saund. Pl. & Ev., 808.

2nd. There is no evidence that the words were uttered "solely in reference to the plaintiff's conduct in writing the letter." Defendant does not use the word " solely." He says: "the excitement and letter caused all that was said." It is unreasonable to suppose that the defendant intended to testify, that when he called the plaintiff a "thief," he merely meant that he was a letter-writer, yet the language of the prayer would require the jury to find that such was the defendant's meaning, and that he was so understood by the bystanders. The fact that the slanders were uttered without any ground for believing them to be true, instead of diminishing the damages, (as this prayer would have it,) ought rather to increase them. It is certainly immaterial to inquire whether the words were uttered "in reference to" one thing, or another; or were caused by one thing or another; the question is as to how they were intended and understood.

3rd. There is no evidence that the words were intended, or understood, in any but their ordinary sense. Even as to the words " confidence man" --the only words which the defendant endeavored to explain--he merely testified that he understood by those words, "one who claims to be your friend and turns out to be your enemy;" a definition not at all inconsistent with the common acceptation of the words, as meaning a criminal offence. But the prayer also applies to the word " thief," as one of "the alleged slanderous words," and defendant does not tell us what he understood by that word. Chipman vs. Stansbury, 16 Md., 154.

Nor does the defendant say what the bystanders understood by any of the words. There is, in fact, no evidence whatever, in the least degree, tending to prove that the words were intended or understood in any but their ordinary sense. Long vs. Eakle, 4 Md., 454.

A forcible refutation of the doctrine contained in the defendant's second prayer is found in 1 Starkie on Slander, 213, (margin.) "It seems to be clear, as well upon legal principles, as on those of morality and policy, that where the wilful act of publishing defamatory matter derives no excuse or qualification from collateral circumstances, none can arise from a consideration, that the author of the mischief was not actuated by any deliberate and malicious intention to injure, beyond that which is necessarily to be inferred form the very act itself. For if a man wilfully does an act likely to occasion mischief to another, and to subject him to disgrace, obloquy, and temporal damage, he must, in point of law, as well as morals, be presumed to have contemplated the evil consequences which were likely to ensue. * * * It would be highly impolitic and inconvenient as a rule of law to permit every man to destroy the characters of others, provided he was not actuated by motives of express malice, but acted without consideration, heedless of consequences." See also 2 Saund. Pl. & Ev., 808.

The defendant's third prayer is substantially the same as the first prayer, and liable to the same objections.

The defendant's fourth prayer was rightly rejected.

1st. Because it is based upon the mere belief of the jury, and not upon their belief from the evidence.

2nd. There is no evidence to support it.

3rd. It only leaves to the jury to find that the defendant meant to impute no crime, but does not require them to find that he was understood by the bystanders to impute no crime; for although it requires the jury to believe "that said words were meant and understood to charge the plaintiff with being a man who abused one's confidence," &c., the words might have been so understood, and also understood to impute a crime. For a "confidence man" is indeed one who abuses confidence, &c., and thereby obtains money or goods under false...