Norton v. Livingston

• Citation: 24 A. 247,64 Vt. 473
• Parties: LUMAN P. NORTON v. JAMES H. LIVINGSTON
• Decision Date: 21 April 1892
• Court: Vermont Supreme Court

24 A. 247

64 Vt. 473

LUMAN P. NORTON v. JAMES H. LIVINGSTON

Supreme Court of Vermont

April 21, 1892

FEBRUARY TERM, 1892

Judgment affirmed.

C A. Prouty and C. H. Mason, for the defendant.

OPINION

ROWELL

The defendant did not attempt to justify the publication in the sense ascribed to it in the innuendo, but claimed that it is capable of being understood in another and a different sense, and sought to have that sense found by the jury and to justify accordingly, admitting a libel in either sense.

The basis of his position in respect of justification is, that the plaintiff was not bound by the innuendo, but was at liberty to abandon it and to rely for recovery on the meaning claimed by the defendant, and that therefore the defendant had a right to do as he sought to do.

But this position is not tenable; for when the words have different meanings, either of which makes them actionable, an innuendo, if it is good, determines which meaning the plaintiff intends to rely upon, and therefore he cannot abandon the innuendo at the trial and rely upon a different meaning. 1 Am. Lead. Cas. 141. The language of Bagley, B., in Williams v. Scott 1 Cromp. & M. 675, 687, is so much in point that we quote it "It has been contended that this innuendo may be rejected, and that the plaintiff will then be entitled to a verdict on this count. * * * You may reject on demurrer or on motion in arrest of judgment an innuendo that is not warranted by the preceding allegations in the declaration and all the cases cited by the plaintiff's counsel are cases of this description. But the question here is, whether you may reject at the trial an innuendo that is good upon the face of the declaration? By such an innuendo the plaintiff makes it part of his case that the alleged slander bears the peculiar character that he assigns to it; and I know of no instance in which it has been held that you may separate the words themselves from the explanation that the plaintiff has given to them. Sellers v. Till, 4 B. & C. 655; Smith v. Carey, 3 Cambp. 461, and the dictum of Lord Ellenborough in Woolnoth v. Meadows, 5 East 470, lean the other way, and appear to show that the whole of an innuendo that is not bad on the face of the declaration must be proved; they show that such an innuendo gives a specific character to the libel or slander that becomes parcel of the issue, and a failure in proof of which will be fatal to the plaintiff's case." Smith v. Carey is an apt illustration of this rule. There the words were that "he lived by swindling and robbing the public." They were laid differently in different counts, but in each count there was an innuendo that the defendant thereby meant that "the plaintiff had been and was guilty of felony and robbery." The words were proved as laid, but they appeared to allude to a transaction from which it might be inferred that the defendant meant to charge plaintiff only with fraud. Lord Ellenborough said that the words in themselves were actionable, and that if there had been no such innuendo as to their meaning, the plaintiff would certainly have been entitled to a verdict; but that the plaintiff was bound to show that they were spoken in the sense he had ascribed to them, and if the jury should be satisfied that they were spoken with intent to impute, not felony, but merely fraud, there must be a verdict for the defendant.

The defendant, in support of his position, refers to Odgers on Lib. & Sland. 101, 177, 487, and Watkin v Hall, L. R. 3 QB 396. But these are authorities under the Common Law Procedure Act, 1852, which altered the common law, and by which every innuendo may be good although not supported by a prefatory averment, and a declaration containing one count for libel or slander, with an innuendo that the words were used in a particular sense, is taken as if there were two counts, one with the innuendo and one without the innuendo; and if the plaintiff proves either, it is sufficient. It follows, therefore, that the defendant may plead a justification as to the words with the meaning in the innuendo and also as to them without that meaning. But that such was not the common law, Mr. Justice Blackburn shows in that very case, for he says that before the passage of that act, an innuendo was preceded by an inducement as to the application of the slander, and if the inducement did not support the innuendo the action failed, because it was not allowable to show that the words...