Gendron v. St. Pierre

• Decision Date: 05 December 1905
• Citation: 73 N.H. 419,62 A. 966
• Parties: GENDRON v. ST. PIERRE.
• Court: New Hampshire Supreme Court

62 A. 966

73 N.H. 419

GENDRON

v. ST. PIERRE.

Supreme Court of New Hampshire. Hillsborough.

Dec. 5, 1905.

Transferred from Superior Court; Chamberlin, Judge.

Action by Jules Gendron against Servule St Pierre for slander. A verdict was rendered in favor of plaintiff in the superior court for $50, and the case was transferred for the hearing of defendant's exceptions. Overruled.

The original writ contained two counts. The second count (see 72 N. H. 400, 56 Atl. 915) was struck out by amendment. The first count, as amended since the former transfer of the case, is in substance as follows: In a plea of the case, for that, whereas, the plaintiff is a good, true, and just citizen of said state, and from the time of his birth has always behaved and governed himself as such, and during all that time has never been guilty, nor justly suspected of having been guilty, of cheating, deceit, fraud, or any crime whatsoever; and whereas, said plaintiff, on the 29th day of October, 1900, at said Manchester, was an honest and lawabiding citizen of said Manchester, and has always maintained himself by industrious attention to his business, and supported and maintained his family and treated his wife kindly, giving her of his money and attention all within his power, nevertheless the defendant, not being ignorant of the premises, but fraudulently, maliciously, and wickedly contriving to injure, blacken, and defame the plaintiff in his good name and reputation, and to expose him to pains and penalties prescribed by law, did on, etc., at, etc., in presence of divers good citizens, etc., utter and publish the following false, scandalous and malicious words of and concerning the plaintiff, to wit: "When I first visited the woman [meaning the wife of said plaintiff] she appeared to he sadly neglected, and I at once became suspicious of insurance fraud. My suspicions were not lessened by the apparent indifference of the woman's husband and sister with reference to her condition. I learned that the magnetic healer who had been treating her had been discharged on recommendation of a priest, who said that the medicines should be thrown away. I examined the remedies the magnetic healer had been using, and was surprised to find that they were all right. I believe that if their use had been continued, the woman [meaning the plaintiff's wife] might have recovered. As it was, she [meaning the plaintiff's wife] went three days without any medical attendance [meaning she was willfully neglected by said plaintiff]. Then I was called. I was told that there was an insurance on the woman's [meaning the plaintiff's wife's] life. Mr. Gadbois came to me yesterday, and I refused to sign the death certificate. The woman's [meaning the plaintiff's wife's] body had been removed from the Orange street house to her home on Church street. I did not know until I investigated whether the woman I had treated was dead, or whether it was some other. Furthermore, I was suspicious with regard to the insurance. I think the woman [meaning the plaintiff's wife] was neglected in order that her family might get her insurance [meaning that she, the plaintiff's wife, was culpably neglected in her sickness by the plaintiff, so that she, the plaintiff's wife, might die, and he, the plaintiff, might receive the insurance upon her life]." The declaration further alleges that by reason of the publication of these words the plaintiff was brought into great infamy and contempt among his fellow-citizens, and has suffered great anxiety of mind and been exposed to pains and penalties prescribed by law. The defendant's demurrer to the declaration was overruled, subject to exception. The defendant's petition for a new trial on account of newly discovered evidence was denied February 21, 1905, after a hearing. At this hearing the defendant's motion to set aside the verdict, because it was against the evidence and because the damages were excessive, and his request that all the testimony be transferred, were denied. It was found by the court that the defendant waived his right to make said motions by not making them at the close of the plaintiff's testimony, or at the close of all the testimony. April 29th the defendant filed a motion to set aside the verdict because (1) upon the evidence, as matter of law, the defendant was not guilty of slander of the plaintiff; (2) the verdict was contrary to the law and the evidence; (3) it is wholly unsupported by the evidence; (4) the evidence, as matter of law, did not sustain the allegations of the declaration; (5) the damages assessed were contrary to the law; and (6) they were wholly contrary to the evidence. This motion was denied, subject to exception. The defendant then requested that the evidence relating to the charge of slander and the damages be made a part of the case. The request was denied, and the defendant excepted.

Andrews & Andrews, for plaintiff. Branch & Branch, and John P. Bartlett, for defendant.

CHASE, J. The plaintiff, by his declaration, places his right of action wholly on the ground that the alleged slanderous words per se imputed to him the commission of the crime of killing his wife by his criminal negligence in omitting to perform a duty to her which the law imposed upon him. No question is made that a husband who can supply his wife with the necessities of life, and neglects to do so while she is living with him and is incapable of caring for herself by reason of sickness or other cause, is guilty of the crime of murder or manslaughter, according to the nature and degree of the negligence in respect to premeditation, willfulness, recklessness, and culpability, if her death is caused or hastened by such neglect. Buch v. Company, 69 N. H. 260, 261, 44 Atl. 809, 76 Am. St. Rep. 163; State v. Smith, 65 Me. 257; Lewis v. Georgia, 72 Ga. 164, 53 Am. Rep. 835; Territory v. Manton, 8 Mont. 95, 19 Pac. 387; Regina v. Marriott, 8 C. & P. 425, 34 Eng. C. L. 816; Regina v. Plummer, 1 C. & K. 600, 47 Eng. C. L. 600; Regina v. Nicholls, 18 Cox C. C. 75; 2 Bish. Cr. L. §§ 659, 686; P. S. c. 278, §§ 1-8. The demurrer raises the question whether the declaration sufficiently sets forth an imputation to the plaintiff of the commission of such crime.

The defendant says the declaration is defective because it does not set forth that the plaintiff had the exclusive care of his wife, and does not allege, except in the innuendoes, that the plaintiff's negligence caused her death. It is stated in the inducement of the declaration that the plaintiff "has always * * * supported and maintained his family, and treated his wife kindly, giving her of his money and attention all within his power." This necessarily implies the existence of the relation of husband and wife between him and the woman referred to in the alleged slanderous words, an appreciation by him of the legal duty that pertains to that relationship, and an attempt on his part to fulfill the duty. It states facts showing that the duty was not removed or suspended for any...