Wing v. Wing

• Citation: 66 Me. 62
• Parties: ALMON WING v. DANIEL WING. 1875.
• Decision Date: 11 April 1876
• Court: Maine Supreme Court

66 Me. 62

ALMON WING v. DANIEL WING.

1875.

Supreme Judicial Court of Maine.

April 11, 1876

ON EXCEPTIONS.

CASE FOR SLANDER. The declaration alleges in the usual form that the defendant uttered and published the following false scandalous and malicious words of and concerning the plaintiff, to wit: " Almon Wing stole windows from Benjamin Jordan's house," by means of which false and scandalous words, the plaintiff has been exposed to a prosecution for stealing, and has suffered great anxiety of mind. The defendant demurred generally to the declaration. The presiding justice, the demurrer being joined, sustained it; and the plaintiff excepted.

I W. Davis, for the plaintiff.

L Barker & L. A. Barker, for the defendant.

PETERS J.

The words alleged to be actionable are: " Almon Wing stole windows from Benjamin Jordan's house." There being no special averments, it is to be presumed that the words were used in their ordinary and popular sense. The plaintiff impliedly so avers, there being no express averment to the contrary. That is one rule of construction. Another rule is that all the words spoken, so far as necessary to ascertain the meaning of the person who utters them, must be considered together. The sense of actionable words may be so far qualified by subsequent words spoken in the same connection, that the words taken together are not actionable. Therefore, if a person is charged with stealing, under such circumstances as show that a felony was not capable of being committed, the words are not to be regarded as actionable. Among the illustrations of this rule, is the familiar one found in the books, and stated in Bac. Abr., (Title Slander) in this way: " If J. S. say to J. N., ‘ thou art a thief, and hast stolen my trees,’ no action lies; it appearing from the latter words, that the whole words only import a charge of a trespass." Allen v. Hillman, 12 Pick. 101. Dunnell v. Fiske, 11 Metc. 551. Edgerly v. Swain, 32 N.H. 478. See also numerous cases cited in note to the case of Booker v. Coffin, 1 Amer. Lead. Cases, 76.

Tested by these rules, our opinion is, that the words uttered by the defendant do not impute the crime of larceny, but amount to an accusation of only a trespass upon real estate. The meaning conveyed by the words is at least doubtful. They may be susceptible of different constructions, perhaps. But words cannot be regarded, upon demurrer to the declaration, as actionable, unless they can be interpreted as such, with at least a reasonable certainty. In case of uncertainty as to the meaning of expressions of which a plaintiff complains, the rule requires him to make the meaning certain by means of proper colloquium and averment. It is always within his power to do so. Robinson v. Keyser, 22 N.H. 323. Emery v. Prescott, 54 Me. 389.

" Windows" are, strictly, a part of a house; and ordinarily affixed permanently thereto. If the defendant had intended to charge a theft of windows which were not a part of a house, the form of expression would more naturally have been, that the plaintiff " stole Benjamin Jordan's windows; " or, " windows from Benjamin Jordan." The fact that they were stolen at his house would seem to be rather an immaterial fact, to be so emphatically stated. If any other word implying violence or force is substituted for the word " stole," the words complained of could not be tortured into an interpretation such as the plaintiff contends should be ascribed to them. Haynes v. Haynes, 29 Me. 247.

But the plaintiff maintains that, if the words do not impute the crime of larceny, they do impute at least the charge of a criminal act of trespass upon real estate, such as is described in the malicious mischief act, found in R. S., c 127, § 15; and that, in that view, the words are actionable. Whether it would be actionable in this state, to accuse a person of malicious trespass, we do not now...