Gove v. Blethen

• Decision Date: 10 October 1874
• Citation: 21 Minn. 80
• Parties: R. H. GOVE <I>vs.</I> H. K. BLETHEN.
• Court: Minnesota Supreme Court

Page 80

21 Minn. 80

R. H. GOVE vs. H. K. BLETHEN.

Supreme Court of Minnesota.

October 10, 1874.

Appeal by defendant from an order of the district court for Olmsted county, overruling a demurrer to the complaint.

P. M. Tolbert and R. A. Jones, for appellant.

Charles M. Start, for respondent.

McMILLAN, C. J.

This is an action for slander. The defendant demurred to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant appealed from the order overruling the demurrer.

There are two classes of defamatory words for which an action may be sustained: first, words which are actionable in themselves; second, those which become so, in consequence of some special damage which they have caused.

Whether words are actionable in themselves, or not, depends among other things, upon whether they are spoken of a person individually, or spoken of him in relation to his business, profession or office.

Without entering upon a consideration of the distinctions which may exist between persons holding offices of emolument, and those in mere honorary official positions, it may be laid down as the settled rule, that slanderous words spoken of a person in an office of profit, and relating to him in such office, importing a charge of unfitness, either in respect of morals or capacity, for the duties of such office, or a want of integrity, or corruption therein, are actionable per se. Bacon's Abr. Slander, B, 3; 3 Bl. Com. (Cooley,) 123, note; 1 Starkie on Slander, 118; Stephen's Nisi Prius, 2555; Dole v. Van Rensselaer, 1 John. Cas. 330; Hopkins v. Beedle, 1 Caines' Rep. 347; 2 Chitty Pl. 641, note l.

This rule is to be applied to the case under consideration, in determining the sufficiency of the complaint. The complaint, after alleging that at the several times thereinafter mentioned, and for a long time prior thereto, the plaintiff was, and still is a justice of the peace, etc., and the usual matter of inducement, proceeds: "Nevertheless, the said defendant, well knowing the premises, but contriving and maliciously intending to injure the said plaintiff in his good name, credit and reputation, and to bring the plaintiff into disgrace and scandal as justice of the peace, as aforesaid, amongst his neighbors and friends, and other good citizens of this state, on December 30, 1872, at Rochester in this state, in a certain discourse which the defendant then and there had, of and concerning the said plaintiff, and of and concerning the said plaintiff in the execution of his said office of justice of the peace, and of and concerning a decision the plaintiff had then recently made, in a suit before him as such justice of the peace, wherein one O. P. Whitcomb was plaintiff, and the said defendant was defendant, in the presence and hearing of A. J. Wright, and divers other worthy citizens of this state, falsely and maliciously spoke and published of and concerning him, in the exercise of his office of justice of the peace, as aforesaid, and of and concerning the plaintiff's decision of the said suit of Whitcomb against the defendant, these false, scandalous and malicious words following, that is to say: `Gove (the plaintiff meaning) perjured himself in deciding the suit of Whitcomb (the said O. P. Whitcomb meaning) against me (the defendant meaning.)' [We omit here a portion of the discourse which has no bearing upon the question now before us.] `And I (the defendant meaning) will be d — d if I (the defendant meaning) will believe him (the plaintiff meaning) under oath; for he (the plaintiff meaning) has decided against me (the defendant in the suit of O. P. Whitcomb against the defendant meaning) contrary to all law and evidence, and it is the G — d d — est erroneous decision (the decision of the plaintiff as justice of the peace, in the suit of O. P. Whitcomb against the defendant, meaning) I (the defendant meaning) ever saw any justice give, and it was a d — d outrage, and it (the decision meaning) was done for spite,' (meaning that the plaintiff, as such justice, had decided the said suit of O. P. Whitcomb against the defendant corruptly and for spite.)" * * *

The defendant's counsel objects that the complaint does not aver that the decision of the suit between Whitcomb and the defendant was made by the plaintiff as a justice of the peace, nor that the suit was one of which the plaintiff, as such justice of the peace, had jurisdiction, nor that the decision spoken of was one he might have made in the execution of his office.

There are many respectable authorities which hold that an averment of jurisdiction, in a case like the present, is not necessary. Niven v. Munn, 13 John. 48; Crookshank v. Gray, 20 John. 344; Wilson v. Harding, 2 Blackf. 241; Dalrymple v. Lofton, 2 McMullan, 112; Harris v. Purdy, 1 Stew. 231; Canterbury v. Hill, 4 Stew. & P. 224.

But assuming, for the purpose of this case, that jurisdiction must be alleged, we think the allegations of the complaint are sufficient upon that point.

The language of the complaint is that the slanderous discourse was "of and concerning the...