Harman v. Cundiff

• Decision Date: 08 July 1886
• Parties: HARMAN v. CUNDIFF.
• Court: Virginia Supreme Court

82 Va. 239

HARMAN v. CUNDIFF.

Supreme Court of Appeals of Virginia.

July 8, 1886

Error to judgment of circuit court of Floyd county, rendered 9th May, 1885, in an action of trespass on the case in slander wherein John Cundiff was plaintiff and David Harman was defendant. The jury found for the plaintiff, and assessed his damages at $800, and the court entered up judgment accordingly. At the trial five bills of exceptions were taken by defendant to the rulings of the court, and a writ of error and supersedeas obtained to said judgment from one of the judges of this court.

Opinion states the case.

G W. and L. C. Hansbrough, for the plaintiff in error.

(1.) Words are actionable which impute a punishable offence. The fourth count of the plaintiff's declarance says: " Cundiff stole Peter Harman's sheep" and imputes a punishable offence and is actionable. 4th Minor, 378. None of the other counts contained words imputing a punishable offence. Words not imputing a punishable offence may be made to sustain an action by the use of an averment containing a plain allusion to some prior transaction, where from the words the hearers must necessarily have understood the slanderer to impute to the plaintiff the guilt of some punishable offence, which averment is called a " " colloquium." Hence it is not actionable to call one " villain," " cheat," " " swindler," or " rogue," or " thief," or to say he is " forsworn," and the like, without a colloquium of some proceeding in a court of justice in which the party had been examined on oath, or of some transaction to which the opprobrious epithets were designed to relate. 4th Minor, 379. With such colloquium, such words not actionable in themselves, may be actionable. Idem -- Folkard's Starkie on Slander, p. 468 note (24.) None of the counts had a colloquium. In the cases wherein " thief" has been held to be actionable, there was such statement or colloquium. " Cundiff stole sheep," does not impute a punishable offence, and is not actionable per se. Yet with proper averments, or colloquium, it may be actionable. No colloquium in case at bar. Hence, all the counts but the fourth were insufficient in law, and the demurrer should have been sustained. Thus " where B. had been accused of stealing a tray of biscuits, and A. said, in the hearing of B. and other persons, that, if they did not look out A. would make the tray of biscuits roar," it was held that with proper averments, connecting B. with this language of A., B. might maintain action against A. And so, of the words: " Your children are thieves." Townshend on Slander, p. 164, note. To call one " a thief" is not actionable, unless it is intended to impute to him a felony and such intention must be shown by proper averments called the colloquium.

(2.) Variances. --Material. Allegata and probata must correspond. The following variances were held to be material: Allegation. " There was a collusion between A., B., & c." Proof. There was a collusion between A. and B. Allegation. " You stole a dollar from A." Proof. " You stole a dollar from B." See also illustrations from Waggoman v. Byers, 17 Maryland. In Hansbrough v. Stinnett, 25 Gratt. 504, the allegation was: Defendant said, " Dick Stinnett killed my beef." Proof was: Defendant said, " she suspicioned that Dick Stinnett helped to kill her beef or had a hand in it." Held: It was a material variance. Court below allowed plaintiff to amend his declaration during the trial. Held: Such leave to amend was error.

Bond described as dated 4th January, 1874. True date was 4th January, 1875. Held: Fatal variance. Gordon v. Brown, 3 H. and M., 219.

Lien for 12 months was described as lien for five months. Held: Variance fatal. Olinger v. McChesney, 7 Leigh 660.

Indictment for cutting ten white oaks. Proof. Cutting one black oak. Held: Variance fatal. Butcher's Case, 4 Gratt. 544.

In case at bar. Declaration alleged that the defendant said in the presence of Riley Hylton that " plaintiff stole Peter Harman's sheep." Proof. Defendant so said, but Riley Hylton was not present. Court below allowed plaintiff to amend by striking out the name of Riley Hylton from the declaration. Defendant excepted. The variance was material. Code 1873, chapter 173, section 7, allows amendment to cure immaterial variances, but not for material ones. This variance was material. When defendant approached Riley Hylton to know how it was, & c., Riley Hylton would deny being present and hearing any such remark, and such denial would mislead and injure the defendant in making his defence. If the amendment were allowed, the court below should have sent the case to rules. 1 Rob. Pr., 233.

(3.) Instructions. --It was error for the court to instruct the jury as to actual malice as the ground of exemplary damages, without informing the jury that they had a right to look to all the circumstances of provocation and excuse given in evidence in mitigation of damages. It is error for a court to give prominence to the evidence of one party to the slight of the evidence of the other, party; for example, the malice and wealth of the defendant. See Brown v. Rice, 76 Va. 629. It was error to refuse to give instruction 6: " The jury are instructed that if, from the evidence, they believe plaintiff entitled to recover, the amount of damages is to be regulated by the injury done to the plaintiff, and not by whet defendant is able to pay." See Burks, J., on p. 201, 29 Gratt., Womack v. Circle. It was also error to refuse the other instructions as asked for by defendant. They clearly state the law appropriate to the case. As given, some of them seem insensible and misleading.

A. A. Phlegar, for the defendant in error.

OPINION

LACY, J.

This is a writ of error to a judgment of the circuit court of Floyd county, rendered on the 9th day of May, 1885. It is an action of trespass on the case in slander. The alleged slanderous words spoken by the plaintiff in error, and published of and concerning the defendant in error, were variously stated by the plaintiff in his declaration in the several counts as--1st. " John Cundiff is a good hand to steal sheep; " 2d. " John Cundiff is as good a hand to steal sheep as ever I saw; " 3d. " John Cundiff is the best hand to steal sheep I ever saw; " 4th. " John Cundiff is a good hand to steal sheep; he has stolen Peter Harman's sheep; " 5th. " John Cundiff has stolen sheep; " 6th. " John Cundiff stole sheep; " 7th. " Cundiff has stolen sheep; " 8th. " John Cundiff has stolen sheep; " 9th. " He has stolen sheep; " 10th. " He stole sheep," with a varied colloquium in each case.

The defendant demurred to the declaration, and the demurrer was overruled. Upon the trial, instructions were asked for by the defendant, and refused by the court. The jury found for the plaintiff, and assessed his damages at eight hundred dollars. The defendant moved the court to set aside the verdict of the jury and grant him a new trial which, being overruled, the defendant moved in arrest of judgment, which motion the court overruled, and gave judgment against the defendant in accordance with the verdict. Whereupon the defendant, having at the trial excepted to the rulings of the court against him, tendered five bills of exception, which, together with the facts proved, were duly certified, applied for and obtained a writ of error to this court.

The first error assigned here is as to the action of the court in overruling the demurrer to the declaration, alleging that the words charged in the first, second, third, fifth, sixth, seventh, eighth, ninth, and tenth counts, stated above, by corresponding numbers, are not actionable, and impute no punishable offence, and that the words charged in the fourth count being actionable, the demurrer should have been sustained to all the counts of the declaration, except the fourth count, and the plaintiff left to stand on the fourth count alone, the words in the other counts not being actionable in themselves, and no special damage being alleged.

Slanderous words are actionable per se, when they impute an indictable offence; and an action of trespass on the case may be had without averring or proving any particular damage to have happened, but merely upon the probability that it might happen. The accusation must be precise in its terms, or have such a plain allusion to some prior transaction that the hearers of the words must necessarily have understood that the slanderer meant to impute to the plaintiff the guilt of some punishable offence; for an innuendo or construction cannot be given to words, which these words 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.

Words falsely spoken of a person, which impute to a party the commission of some criminal offence involving moral turpitude, for which the party, if the charge is true, may be indicted and punished, are such as will support an action. Merely opprobious epithets, as rascal, cheat, villain, & c., without a colloquium, are not so. But to call one a thief, to say of him, he stole my sheep, or he stole sheep, are words which impute a punishable offence, and are actionable. 4 Min. 379; 3 Bl. Com., 153; Starkie on Slander, 98; Wait's Act & Def., 727, 5 Vol.

We think the demurrer was properly overruled in this case as to all the counts in the declaration. But as to the fourth count, it is admitted that the demurrer was properly overruled, it being there charged against the plaintiff that he, " John Cundiff, is a good hand to steal sheep; he stole Peter Harman's sheep."

But it is assigned as error that the allegation there being that the charge of stealing sheep was made in the presence...