Holmes v. Webster

• Decision Date: 11 July 1898
• Citation: 62 N.J.L. 55,40 A. 778
• Parties: HOLMES v. WEBSTER et ux.
• Court: New Jersey Supreme Court

40 A. 778

62 N.J.L. 55

HOLMES

v. WEBSTER et ux.

Supreme Court of New Jersey.

July 11, 1898.

Slander—Pleading—Declaration.

1. In an action for slander, the rule of pleading to be followed is that the words spoken by the defendant of and concerning the plaintiff must be averred in haec verba in the declaration, in order that the court may determine, either with or without the aid of the innuendo, whether they constitute a ground of action, and also in order that the defendant may know the charge against him, and what defense can be made to the action by pleading and proof.

2. The declaration must contain the averment that the words were falsely and maliciously spoken. Malice in fact or in law is essential to the action, and consequently a corresponding allegation is essential to a complete declaration.

(Syllabus by the Court.)

Action by Henry C. Webster and wife against James P. Holmes. Heard on demurrer to declaration. Demurrer sustained.

Argued February term, 1898, before LIPPINCOTT, GUMMERE, and LUDLOW, JJ.

Aaron Burr, Lewis Morris, and John W. Wescott, for plaintiffs.

Charles K. Chambers, for defendant.

LIPPINCOTT, J. This action is brought by husband and wife against the defendant for slander against the wife. The declaration contains two counts, one in which the alleged slanderous matter is set forth against the wife with consequent damage to her. The second count is for damages to the husband by reason of such slanderous matter set out in the first count, against the wife, without any statement or repetition of such matter in such count. The demurrer to the declaration in this case is sought to be sustained upon several grounds: First, that the defamatory words used by the defendant concerning the female plaintiff are not set forth in either count of the declaration; and, secondly, that it is not averred in either count that the words complained of were falsely and maliciously spoken. There are other causes of demurrer assigned, which it has not been found necessary to consider. The averment of the declaration is that the defendant, in the presence of others, offensively assailed the character and conduct of the female plaintiff. The allegation is, in substance, a statement of the conclusion of the defendant concerning the plaintiff's character and conduct, without stating the words used, in a manner which separated his conclusions from the words. It is not found necessary to state the averments of the declaration in this opinion. The averments of the conclusions of the defendant, in his statements, in relation to the plaintiff, are offensive, and need not be repeated here. The rule of pleading is that words used should be set forth in hæc verba. The usual averment, and the one required, is that the defendant spoke and published of and concerning the plaintiff the false, scandalous, malicious, and defamatory words "following; that is to say" (setting out the words' used, with proper innuendoes). 2 Chit. PI. (13th Am. Ed.) 633-636. The words must be set out, in order that the court may determine, either with or without the aid of the innuendo, whether they constitute a ground of action, and also that the defendant may know the charge against him, and what defense can be made to the action by pleading and proof. These are the reasons of the rule which requires that the averment must be specific as to the words used. The declaration in this instance is only a narrative of what occurred, and this is insufficient. Burns v. Williams, 88 N. C. 159. The declaration is bad for not setting out the words verbatim. Gutsole v. Mathers, 1 Mees. & W. 495. The averment must profess to set out the very words. Bagley v. Johnston, 4 Rich. Law, 22; Harris v. Warre, 4 C. P. Div. 128. The very words should be set out. Kenyon v. Cameron (R. I.) 20 Atl. 233, 234. Newell, Sland. & L. p. 638; 13 Am. & Eng. Enc. Law, 434. The very words complained of must be set out, "in order that the court may judge whether they constitute a ground of action'" (3 Barn. & Ald. 506), "and also because the defendant is entitled to know the precise charge against him, and cannot shape his case until he knows" (Harris v. Warre, 4 C. P. Div. 128). The defendant cannot plead the truth in justification unless the charge is made precise.

2 Odgers, Lib. & Sland. (Eng. Ed.) p. 404. It is not sufficient to give the substance or purport of the words. Id.; Ward v. Clark, 2 Johns. 10; Newton v. Stubbs, 3 Mod. 72. It has been settled by numerous authorities that the declaration must profess to set out the very words published or spoken, and it is not sufficient to describe them by their substance and effect. Starkie, Sland. p. 302, 363; Newton v. Stubbs, 3 Mod. 71; Res v. Bear, 2 Salk. 417; Ford v. Bennet, cited in 1 Ld. Raym. 415. It is not sufficient to aver that the defendant spoke the words, vel his similia. Cro. Jac. 159; 1 Vin. Abr. 533; Cook v. Cox, 3 Maule & S. 110; Wood v. Brown, 6 Taunt. 169; Wright v. Clements,

3 Barn. & Ald. 503. When it comes to the proof in the case, the same strictness is not required. Starkie, Sland. 369, and cases cited. Upon the ground that the...