Vanderlip and Wife v. Roe

• Decision Date: 01 April 1854
• Citation: 23 Pa. 82
• Parties: Vanderlip and Wife versus Roe.
• Court: Pennsylvania Supreme Court

23 Pa. 82

Vanderlip and Wife versus Roe.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Susquehanna county.

Little, for plaintiff in error.—The words are actionable, because they impute in direct terms to an unmarried female such a character as to degrade her. It appears to be the contumely, and not the peril, which gives the action: 2 M. & R. 119; Cooke on Defamation 9; 5 Barr 372. The words, "you have done an act for which I could transport you," are slanderous, and neither colloquium or innuendo are necessary. 4 M. & Scott 337; 10 Bing. 447. The slander need not be charged in direct and positive terms. 2 Wend. 534; 3 Id. 391; 4 Id. 320. They are to be taken in their natural meaning, the old doctrine of "mitior sensus" is exploded: Cooke on Defamation 13; 13 Mass. 248; 2 Pick. 320. The declaration in this case charges that the words were designed to convey an imputation of infamous conduct and of crime, and, after verdict, they are to be construed in a sense which will support the verdict: Cooke on Defamation 13.

It is only when words, per se, do not import criminality or contumely, that a colloquium is necessary: 3 Penna. Rep. 103, Deford v. Miller; 2 Watts 353, McKennon v. Greer.

Certainty to a common intent is all that is necessary in pleading.

Jessup, for defendant.—The words must be such as can be understood only in a criminal sense, or it must be shown in the introductory part, by a colloquium, that they have that meaning, otherwise they are not actionable: 3 Wilson 186; 6 Term Rep. 694; 3 Bos. & Pul. 372; 1 Binney 542; 5 Id. 219; 5 Johns. 190. It was contended that the words in question did not contain an imputation of any crime liable to punishment, and that they were not such as could be understood only in a criminal sense.

2 and 3. There was no colloquium to connect the subject-matter with the words as contained in the innuendo. An innuendo cannot add to or extend the effect of words, nor aver a meaning inconsistent with them. It is an averment which explains the meaning of the words used by reference to facts before ascertained by averment or otherwise: Cooke on Def. 64. It can only connect the words with some matter on the record: 2 Cowp. 683; 1 Bin. 543; 2 Bing. 119; 5 Bin. 220; 3 Watts 93; and therefore a colloquium is necessary to show that a particular meaning imputed by the innuendo is legitimately indicated by the attendant circumstances; and the circumstances should be stated: 3 Penna. Rep. 105-6; 2 Cowp. 345; 2 Pick. 328; 12 Mass. 500; 5 B. & Ad. 144.

Where words are defectively laid, a verdict does not cure the defect: 1 Cowp. 278.

The opinion of the Court was delivered by LOWRIE, J.

That the charge of fornication involved in the words "she is a bad character, a loose character," may be sufficiently averred by an innuendo without a colloquium, is certainly proved by the opinion of Chief Justice GIBSON in Thompson v. Lush, 2 Watts 20; McKennon v. Greer, Id. 353; and Hays v. Brierly, 4 Watts 393. If no other words were used, then there could be no subject-matter for the colloquium; and then there could be no action, if the colloquium is essential. If other words were used, showing a different intention, the defendant could prove them, and thus contradict the innuendo, by supplying the colloquium. If we have the whole conversation, or if the part of it which is given contains the charge of fornication, we need no colloquium....