Nash v. Fisher

• Decision Date: 07 February 1917
• Docket Number: 807
• Citation: 24 Wyo. 535,162 P. 933
• Parties: NASH v. FISHER
• Court: Wyoming Supreme Court

162 P. 933

24 Wyo. 535

NASH v. FISHER

No. 807

Supreme Court of Wyoming

February 7, 1917

ERROR to District Court, Laramie County; HON. WILLIAM C. MENTZER Judge.

Action by Warren C. Fisher against John C. Nash for slander. There was a judgment for plaintiff, and defendant brings error. Considered and decided on questions relating to the sufficiency of the pleadings.

Affirmed.

William C. Kinkead, for plaintiff in error.

As appears from the petition the term, murderer, was used in a restrictive sense; the petition does not state a cause of action, there being no colloquium, innuendo or allegation charging that defendant meant by said words to impute to plaintiff the crime of wife murder and that the hearers so understood him; the words complained of were not actionable per se. The petition failed to allege special damages. The evidence showed that the persons who heard the alleged slanderous words understood thereform that defendant was charging plaintiff with neglect of his first wife. Slanderous words have been divided into five classes by the authorities words falsely spoken of a person, which impute to the party the commission of a criminal offense involving moral turpitude, for which the party charged might be indicted and punished; words falsely spoken of a person which impute that he is infected with a contagious disease, which if true would exclude him from society; words falsely spoken of a person imputing his unfitness for office or want of integrity; defamatory words falsely spoken of a person which prejudice him in his or her trade or profession; words falsely spoken of a person, which, though not in themselves actionable, occasion special damages. (Newell on Def., etc., page 40; Pollard v. Lyon, 91 U.S. 225; Chapin v. Lee, 18 Neb. 440.) Slanderous words within the first four classes are actionable per se without proof of special damages; words coming within the fifth class are not actionable unless special damages are sustained. In counting upon the utterance of words not actionable per se special damages must be alleged and proven. (Newell on Def., etc., 779; Brandt v. Storey (Ia.), 143 N.W. 545; Pollard v. Lyon, 91 U.S. 225; Cook v. Cook, 100 Mass. 194; Davis v. Brown, 27 O. St. 326; Bassell v. Elmore, 48 N.Y. 561.) If the slander charged imputes the commission of a criminal offense involving moral turpitude, the action was maintainable, but if not may fall into the fifth class and the action must fail for want of allegations of special damages. (Fraser v. Grab, 183 S.W. 1083.) The petition is insufficient to state a cause of action. (Newell on Def., etc., 600; Vickers v. Stoneman (Mich.), 41 N.W. 495.) A colloquium is a statement of facts explaining the slanderous words; an innuendo is to define their defamatory meaning. (Buckstaff v Viall (Wis.), 54 N.W. 111; Lemmer v. The Tribune, 148 P. 338; Lafky v. Albert, 137 P. 209; Dixon v. State (Ala.), 1 So. 69; Grand v. Dreyfus (Cal.), 54 P. 389; Wallace v. Homestead (Ia.), 90 N.W. 840; Stafford v. Green, 1 Johns. 505; Mitchell v. Browne, 8 Roll. Ab. 70; Townsend on Libel and Slander, Sec. 338.) Proof of the innuendo or matter of inducement is necessary. (Skelley v. St. Louis Ry. Co., 161 S.W. 877.) A criminal imputation will not be inferred. (Grand v. Herald, 123 N.Y.S. 449; Bartholomew v. Bentley, 45 Am. Dec. 596; Walsh v. Palitzer (Mo.), 157 S.W. 326; Harrison v. Manship, 22 N.E. 87.) If the words complained of are not actionable per se the petition is insufficient in the absence of matter of inducement, colloquium, innuendo, malice or special damages. Alleged defamatory words must be construed as a whole with other parts of the conversation. (25 Cyc. 357; Yakavicza v. Valentukevicious, 84 Conn. 350; Hotchkiss v. Olmstead, 37 Ind. 74; Ford v. Primrose, 5 D. & R. 287; Rock v. McClarnon, 95 Ind. 415; Thomas v. Blasdale, 18 N.E. 214; Greeler v. Redmond, 143 N.W. 152; Alfele v. Wright, 93 Am. Dec. 615 (Ore.) The petition in the present case could not be made good by colloquium and innuendo as the words would not support an innuendo of criminality. (Harper v. Delph, 3 Ind. 225; Hays v. Mitchell, 7 Ind. 117; Schurick v. Kollman, 50 Ind. 336.) An action for slander based upon words not actionable per se will not support a recovery for injury to plaintiff's good name in the absence of colloquium, innuendo or allegation of special damage. (Brandt v. Storey (Ia.), 143 N.W. 545; McKenney v. Carpenter (Okl.), 141 P. 779; Pollard v. Lyon, 91 U.S. 225.) The meaning to be ascribed to an alleged slanderous article is that attributed to it by those who heard it. (Newell on Def. &c, 112; Carter v. Andrews, 16 Pick. 3; Ingalls v. Morrisey (Wis.), 143 N.W. 681; Rea v. Harrington (Vt.), 2 A. 475; Smith v. Miles, 15 Vt. 245; Hawks v. Patton, 63 A. Dec. 266; Stallings v. Newman, 62 A. Dec. 723; Greer v. White, 17 Ann. Cases, 270; Paxton v. Woodward, 3 Ann. Cas. 546; Campbell v. Campbell, 11 N.W. 456; Bradley v. Cramer, 18 N.W. 269; Economopoulos v. Pollard, 105 N.E. 896.) There was no allegation of malice. (White v. Nichols, 44 U.S. 286; Western Union v. Cashman, 149 F. 367; 25 Cyc. 444; Dufresne v. Weise (Wis.), 1 N.W. 59; Bundy v. Hart, 46 Mo. 460; Townsend on Slander and Libel, Sec. 159.) In view of the testimony of witnesses who heard the words complained of as to what they understood by them and instructions eight and nine, the verdict was contrary to the law of the case, as defined by said instructions. The case failed in proof as a matter of law, and the court should have directed a verdict for plaintiff in error. (Brown v. Myers, 40 O. St. 99.)

John Charles Thompson, for defendant in error.

The action was predicated upon the proposition that the defamatory words charged to have been made by Nash against Fisher were actionable per se, making any innuendo, colloquium, any allegation of malice or special damage unnecessary. Slander has been clearly defined by the authorities. (25 Cyc. 248.) Two classes of damages are recognized, viz; general and special; the present action being for general damages. The law presumes injury from slanderous words actionable per se. (25 Cyc. 248.) Words imputing the commission of a crime are actionable per se. (25 Cyc. 27.) The words charged against defendant leave no ambiguity or uncertainty for any possible colloquium, or innuendo to illuminate, explain or reply. (Thomas v. Blasdale, 147 Mass. 438, 18 N.W. 18.) Since the decision in the leading case of Brooker v. Coffin, 5 Johns. 190, it has been a settled law that in case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable. It is slanderous per se to charge a person with the commission of murder or manslaughter, and it is immaterial that no such crime has been committed, though that fact be not known to the person who heard the charge; (25 Cyc. 293; Noeninger v. Voight, 88 Mo. 589; Titus v. Summer, 44 N.Y. 266; O'Connor v. O'Connor, 24 Ind. 218; 25 Cyc. 294; Carroll v. White, 33 Par. 6, (N. Y.), 615); and this irrespective of the manner in which the crime is charged to have been committed. (Newell on Slander and Libel, P. 129, par. 60; Stephen's Crim. Dig. 143; Rapalj and Lawrence Law Dict. 614; Taylor v. Casey, Minor (A.), 258; Republican Pub. Co. v. Miner, 3 Colo. Appeals, 568; O'Connor v. O'Connor, 24 Ind. 218; Phillips v. Kingston, 1 Vent. 117; Holcombe v. Roberts, 19 Ga. 588; Rhea v. Harrington, 58 Vt. 181; Poe v. Grover, 3 Sneid (Tenn.), 664.) The record shows that the witnesses who heard the slanderous words understood therefrom that plaintiff had neglected his wife and that it had caused her death. The weight of authority is in favor of the rule that the testimony of readers or hearers, as to what they understood the alleged defamatory words to mean, is inadmissible where the words are unambiguous and plain. (25 Cyc. 502; Gribble v. Pioneer Express Co., 37 Minn. 277, 34 N.H. 30.) It is incompetent for a witness to state his inferences or impressions. (Hersman v. Oberfelder, 54 Iowa 83; Teague v. Williams, 7 A. 844; 17 Cyc. 214; 13 Am. & Eng. Ency of Law, 378.) If the words are actionable per se, the law presumes damages. (21 Cyc. 453; Newell on Slander and Libel, page 609.) The gist of the action appearing on the face of the words themselves, a statement of the circumstances to which defendant may have alluded was unnecessary. (Thomas v. Dole, 147 Mass. 438, N.E. 214; McGough v. Rhodes, 7 Eng. (Ark.), 625; Dorsey v. Whipps, 8 Geil (Ind.), 457; Carroll v. White, 33 Barb. (N. Y.), 615; Newell v. How, 31 Minn. 325; Hall v. Montgomery, 8 A. 510; Watrath v. Nettis, 17 How. (N. Y.), Par. 72; Rodebough v. Hollingsworth, 6 Ind. 469; Croswell v. Weed, 25 Wend. (N. Y.), 621; Langton v. Haggerty, 35 Wis. 158; Am. & Eng. Cyc. of Law, Vol. 13, page 381; Kennedy v. Gifford, 19 Wendling (N. Y.), 206; Tuttle v. Bishop, 30 Conn. 80; Ramsey v. Elms, 3 Jurist, 1189.) No exception was taken to the petition by motion or demurrer and the objection to the pleading comes too late. (Section 4383, Comp. Stats. 1910.) Words cannot be construed according to the secret intent of the speaker. (Curtis v. Mussey, 6 Gray (Mass), 261; Masseure v. Dickens, 70 Wis. 83; McKinley v. Rob, 20 Johns. (N. Y.), 351; Maybe v. Fiske, 42 Barb. (N. Y.), 336; Hankenson v. Beeby, 16 M. & W. 445; 25 Cyc. 415.)

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., did not participate in the opinion.

OPINION

BEARD, JUSTICE.

Warren C. Fisher, as plaintiff, recovered judgment in the district court against John C. Nash for $ 150.00 damages and costs in an action for slander. From that judgment Nash brings error.

The principal question here is one of pleading. It is contended that the petition upon which ...