Smith v. Smith

• Decision Date: 30 April 1855
• Citation: 34 Tenn. 473
• Parties: JAMES L. SMITH v. ALEXANDER W. SMITH.
• Court: Tennessee Supreme Court

34 Tenn. 473

JAMES L. SMITH

v.ALEXANDER W. SMITH.

Supreme Court of Tennessee.

April Term, 1855.

FROM TIPTON.

This was an action for slanderous words spoken, instituted in the circuit court of Tipton county, by the plaintiff in error against the defendant. The words alleged to have been spoken are as follows: “I don't want anything to do with a man that sells liquor to my negroes on Sunday, and he does that thing.”“You can tell him I will not go to such a man's house, who sells my negroes liquor without my permission, and that I know he does.” At September term, 1854, the cause was submitted to a jury of Tipton county, before Hon. J. C. Humphreys, judge, and resulted in a verdict for the plaintiff. Upon motion of defendant, the judgment was arrested; and the plaintiff appealed in error to this court.

John W. Harris, H. R. Bate, C. B. Frazer, and J. Calvin Jones, for the plaintiff.

The plaintiff insists that it is not necessary, to make words actionable, that they should charge a felony. For to charge a lesser crime, for which he is liable to prosecution, is actionable. Alexander v. Alexander, 9 Wend. 141. 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. (And Baron Comyns considers the test to be whether the crime is indictable or not.) In this case the court thought “they might, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty.” Broaker v. Coffin, 5 Johns. 188; Am. Ld. Cas. 110.

That whenever an offence is charged, which, if true, may subject the party to punishment, though not ignominious, but which brings disgrace upon the party falsely accused, it is actionable. Miller v. Parish, 8 Pick. 385.

In Young v. Miller, 3 Hill, 21, the words were, “You have removed my landmarks, and cursed is he that removeth his neighbor's landmarks;” held actionable, without specific allegation. Words spoken of a person, charging him with having committed an indictable offence, involving moral turpitude, are actionable per se, though the offence be a mere misdemeanor, unknown to the common-law, but by statute is punishable by fine and imprisonment in the county jail.

In Ohio, words spoken of a female, having a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such a position in society as is her right as a woman, are actionable in themselves. Malone v. Stewart, 13 Ohio, 319.

To impute any crime or misdemeanor, for which corporal punishment may be inflicted in a temporal court, is actionable without proof of special damage. Stark. on Sland., top page 26. If words doubtful, doubt cured by verdict.

Philip Bruce Glenn, for the defendant, said:

1. The common-law gives no action for mere defamatory words, unless producing special damage, and confines the action of slander to such grosser words as impute positive crime. To this effect see the case of Williams v. Karnes, 4 Humph. 10, 11.

2. The word “crime” has a proper and technical sense--it implies felony. The terms “crimes” and “misdemeanors,” in their legal signification, are descriptive of offences of different and distinctive grades. See the case of McGinnis v. State, where the question is fully discussed and settled. 9 Humph. 43.

To charge a man with harboring a runaway slave is not actionable, without proof of special damage; although for such offence he might, if guilty, be indicted, and upon conviction be fined and imprisoned. The charge, to sustain an action, must impute an offence to which is annexed an infamous punishment--a punishment which involves social degradation, by occasioning the loss of the libera lex. Skinner v. White, 1 Dev. & B. 471.

It is not actionable to charge a man with burning an outhouse, not parcel of the dwelling-house. Brady v. Wilson, 4 Hawks, 93. See the cases of Wall v. Haskins, 5 Ired. 177;Skipp v. McCraw, 3 Murph. 463.

In South Carolina it is held, in 1 Bay's Reports, “to say of one, ‘He is a mulatto or free negro,’ is actionable, upon the principle asserted in several of the North Carolina cases, that the charge, if true, deprives a man of his libera lex, as a free negro or mulatto is not one of the boni et legales homines of society; he cannot vote, be a juror or witness; besides these, there are other disabilities.”

It is said in two cases, in 11 Humph., that the words must impute a criminal charge.

Totten, J., delivered the opinion of the court.

The plaintiff sued the defendant in the circuit court of Tipton, for oral slander. There was a verdict in his favor for $235. Thereon, on motion of the defendant, judgment was arrested; and the plaintiff appealed in error.

The declaration contains several counts, stating the words spoken, which are as follows:

“I don't want anything to do with a man that sells liquor to my negroes on Sunday, and he does that thing.” “You can tell him, I will not go to such a man's house, who sells my negroes liquor without my permission, and that I know he does,” etc.

The words are laid with proper innuendoes, to the effect that the plaintiff had sold spirituous liquors to defendant's slaves, without permission, and contrary to law.

The question is, Do the words, per se, import actionable slander?

Counsel for the defendant assume the position that in the absence of special damages no action will lie for words spoken, unless the offence imputed be of the grade of felony, and the offence here imputed being a misdemeanor, the action will not lie. It seems that in this state we have no reported case decisive of the question.

We may observe, in the first place, that crime, in a general sense, implies any act done or omitted in violation of public law, and for which the person is liable to punishment by indictment, presentment, or impeachment. In reference to the grade of the offence, it is technically called crime or misdemeanor.

Thus, in 4 Bla. Com. 5, it is said: “A crime or misdemeanor is an act committed or omitted in violation of public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors, which, properly speaking, are mere synonymous terms, though in common usage the word “crime' is made to denote such offences as are of a deeper and more atrocious dye; whilst smaller faults and omissions of less consequence are comprised under the gentler name of ‘misdemeanors' only.”

In the common law, the “misdemeanor” is used in contradistinction to “felony,” and into these two classes all offences for which an indictment, presentment, or impeachment will lie are divided. It is a general rule that any words which impute an offence of the grade of felony are actionable of themselves, on account of the highly penal nature of its punishment. As to this there is no question.

An English...