Henkle v. Schaub

• Decision Date: 03 February 1893
• Citation: Henkle v. Schaub, 94 Mich. 542, 54 N.W. 293 (Mich. 1893)
• Court: Michigan Supreme Court
• Parties: HENKLE et al. v. SCHAUB.

54 N.W. 293

94 Mich. 542

HENKLE et al. v. SCHAUB.

Supreme Court of Michigan

February 3, 1893

Error to circuit court, Montcalm county; Vernon H. Smith, Judge.

Action by Henry Henkle and Jacob Kraft against George Schaub. Judgment for defendant. Plaintiffs appeal. Reversed. Ellsworth & Rarden, for appellants.

Mitchel & Hawley and C. W. Perry, for appellee.

LONG J.

Plaintiffs filed a declaration in the circuit court for Montcalm county in an action on the case, for slander, to recover damages against the defendant growing out of his claimed false and malicious statements and representations of and concerning a certain stallion called "Butor," and of and concerning the said plaintiffs in their business as owners of said horse, and in keeping and using the same as a breeding horse, for public and general use, for hire, gain, and reward. Defendant pleaded the general issue. After a jury had been impaneled to try the cause, and counsel for plaintiffs had stated what they expected to prove,-stating the case substantially as set out in the declaration,-he called a witness to prove and substantiate his claims thus made. This was objected to by defendant's counsel on the ground that the declaration did not state a cause of action, and that there was no cause of action stated by plaintiff's counsel; that there could be no recovery in such an action unless special damages were alleged, or offered to be proven. The trial court thereupon stated to counsel that, in order to entitle plaintiffs to recover, it was incumbent upon them to allege and prove the persons by whom the mares were owned or controlled, and by whom they would have been employed to permit or allow said horse to serve said mares for fee or reward, had not the defendant published the slanderous words. The court then offered the plaintiffs the opportunity to amend their declaration in this respect, which plaintiffs declined to do. The court therefore directed verdict for defendant. Plaintiffs bring error. The declaration is set out in full in the statement.

The first question suggested by defendant's counsel is whether the action is for slandering the plaintiffs in their business, occupation, or calling, or an action for slandering the plaintiff's horse. It is admitted that, if it be the former, then the words may be actionable per se, and the action could be maintained without alleging or proving special damages. On the other hand, it is insisted that, if the action is upon the words spoken of and concerning plaintiffs' horse, then the words spoken are not actionable per se, and no recovery could be had without alleging and proving special damages. The claim is made that the occupation or calling of the plaintiffs is not stated in the declaration, and nothing set out therein showing that the defendant said anything of and concerning the plaintiffs in that respect, and that the claim is made for recovery of damages solely upon the ground of the false statements made by defendant of and concerning the said horse, and, as no special damages are alleged, no recovery could be had. This contention...