Hansbrough v. Stinnett
| Decision Date | 19 November 1874 |
| Citation | 66 Va. 495 |
| Court | Virginia Supreme Court |
| Parties | HANSBROUGH & wife v. STINNETT. |
1. In an action for slander at common law, the words charged are " D killed my beef." There being no colloquium, the words not necessarily importing a felony, they cannot be extended in their meaning by the innuendo.
2. In such case, the words themselves not being actionable at common law, unless the averment of extrinsic facts and the colloquium concerning them show that the defendant in speaking the words laid, imputed the crime of felony, they are not actionable.
3. After all the evidence has been introduced on the trial of an action at law, the plaintiff is not to be permitted to add another count to his declaration: the amendment being material to the merits, and therefore not allowable.
4. When the words laid in the declaration have been proved--and not before-- proof of the speaking of like words as those laid either before or after they were spoken, is admissible to affect the measure of damages.
5. A deposition which has been read to the jury may be taken with them in their retirement, if what is objectionable in it has been erased.
6. There is a demurrer to a declaration, which is overruled; but upon appeal the judgment is reversed. When the case goes back, the plaintiff may be allowed to amend his declaration.
This was an action for slander, brought in June 1866 in the Circuit court of Botetourt county, by Richard Stinnett against Ann S. Gorgas. Pending the action in the Circuit court, the defendant married Hiram Hansbrough, and he was made a defendant. The declaration contained seven counts charging the slander to have been uttered in February 1864. The defendants demurred to the declaration and each count thereof. But the court overruled the demurrer. They also pleaded " not guilty," on which issue was joined and they filed a plea of the statute of limitations of one year. To this plea the plaintiff replied that by the laws of the state in force at the time of the committing of the grievances complained of in the declaration, and at the time the action was brought, it was not necessary to bring said action within one year after the committing of said grievances, & c. To this replication the defendants demurred; but the court overruled the demurrer.
After all the evidence had been introduced, and the parties announced that the case was closed, the plaintiff moved the court to be permitted to add another count to his declaration; which was objected to by the defendants; but the court overruled the objection, and permitted the count to be filed; and the defendants excepted.
On the trial the deposition of a witness was introduced by the plaintiff, a part of which was objected to by the defendants, and was stricken out by the court. And when the jury was about to retire the plaintiff asked that they might be permitted to take the deposition with them. To this the defendants objected; but the court permitted the jury to take it; and the defendants again excepted.
There were other exceptions taken by the defendants; but it is unnecessary to state them. The different counts in the declaration are sufficiently set out in the opinion of Judge Anderson.
There was a verdict in favor of the plaintiff for $500, of which the plaintiff released five dollars. To this release the defendants objected; but the court overruled the objection and rendered a judgment for $495. And to this ruling the defendants again excepted. And thereupon they applied to this court for a supersedeas; which was allowed.
Hansbrough and John William Johnston, for the appellants.
Pendleton, for the appellee.
This is an action of slander at common law, and not under the statute, and must therefore be governed by common law rules. It lies for words which are actionable in themselves, or for those which, though not actionable in themselves, have caused some actual consequential damage, which must be alleged and proved. Words of the first description must impute guilt of some offence, for which the plaintiff, if guilty, might be indicted in the temporal courts, and punished as for an infamous crime, at least punishable with imprisonment. 2 Chit. Black., book iii, c. 8, top p. 95, side 123, note 14, and cases cited.
The words themselves may not import an imputation of crime, but spoken with reference to preë xisting or extrinsic facts, as shown by the conversation or discourse of the defendant, at the time the words were spoken, do impute crime. But to be actionable, they must be shown by the averment of the extrinsic facts, and by the colloquium referring to them to impute crime, or some high misdemeanor punishable ignominiously by the temporal courts.
In Holt v. Scholefield, 6 T. R. 691, Lord C. J. Kennyon said, " Either the words themselves must be such as can only be understood in a criminal sense, or it must be shown by a colloquium in the introductory part that they have that meaning, otherwise they are not actionable." The words must contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor. Onslow v. Horne, 3 Wils. R. 177. And it is necessary to set forth precisely the words spoken. It has been held by some that it is sufficient to set out the words in substance. But the weight of authority is contra. Mr. Robinson, in his valuable work, says the rule is now well established that the words themselves must be set out. 4 Rob. Prac., p. 688, citing Parsons v. Bellows, 6 Newh. R. 289; Haselton v. Weare, 8 Verm. R. 480. And it has been held, that the same strictness in setting out the words spoken is required in civil as in criminal proceedings, the action being ex delicto. Ibid, citing Cook v. Cox, 3 Maule and Sel. 110.
Let us apply these principles to the case in hand. In the first four counts the words are laid without a colloquium. In the first count they are, " Dick Stinnett killed my beef." Innuendo, " meaning thereby that the plaintiff had killed and carried off feloniously a beef, which some person or persons had shortly before that killed and stolen from the field of the defendant." In the second count they are, " he (meaning the plaintiff) killed the beef," " meaning that the plaintiff had clandestinely and feloniously killed and carried off a beef belonging to her the said Ann."
The office of the innuendo is only to give the meaning of the words spoken. It cannot extend or enlarge the meaning of the words, or introduce new matter. Rex v. Howe, Cowp. R. 672; Moseley v. Moss, 6 Gratt. 534; Holt v. Scholefield, 6 T. R. 691; 4 Rob. Prac. 694-5. An innuendo cannot be given to words which they do not necessarily import, either of themselves independently of any other circumstances, or with necessary reference to some other circumstances occurring at the time of the accusation. 2 Chit. Bla., B. iii, c. 8, top p. 95, side 123, note 14, and cases cited. In Van Vechten v. Hopkins, 5 Johns. R. 211, 219, Van Ness J. says, " An innuendo is explanatory of the subject matter, sufficiently expressed before, and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain." That can only be put upon the record by the averment and the colloquium.
It is clear that the words laid in these two counts do not of themselves import an accusation of felony. " He feloniously killed and carried away my beef," is not the necessary or natural import of the words, " He killed my beef." It is clear that these counts are fatally defective and demurrable. And the third and fourth are obnoxious to the same objection.
The fifth count sets out a colloquium in these words: The question is, do these innuendos give the necessary or natural meaning of the words laid, taken in connection with the extrinsic facts averred, and the colloquium? And does it appear upon the face of this count, clearly and unequivocally, that the defendant imputed to the plaintiff felony, by the words which she is alleged to have spoken? The words themselves not being actionable at common law, unless the averment of extrinsic facts, and the colloquium concerning them, show that the defendant, in speaking the words laid, imputed the crime of felony, they are not actionable, and consequently, the defendant was not bound to answer; and the demurrer should have been sustained.
To say that one " killed my beef," without an allusion to any circumstance connected with the killing, could not be construed to be a charge of felonious killing. And it may be that the beef had been...
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