Barnes v. Trundy

Words, not in themselves actionable, may be the fonudation of an action of slander, by reason of some special damage, occasioned by them. No action can bo maintained for such words, spoken of a person with reference to his occupation, unless the declaration contain a distinct averment, that they were spoken of and concerning the plaintiif, and of and concerning his occupation. When words, not in themselves actionable, become so by reason of some special damage occasioned by them, such special damage must be particularly alleged, and it must be proved as laid.

Slander. The trial was before Shepley, C. J. The plaintiff alleges, that he is a trader of integrity and of good reputation; that the defendant, maliciously intending, &c., in the presence and hearing of many good citizens, falsely and maliciously uttered the following false and scandalous words, of and concerning the plaintiff j viz : — “ It would make no difference whether the government, (meaning the government of the United States of America,) got the goods, (meaning the goods of the plaintiff, seized by the said government on a libel against the plaintiff,) or Barnes, (meaning the plaintiff;) that in either ease you, (meaning one Charles C. Mitchell of Portland aforesaid,) should get nothing' from Barnes, (meaning the plaintiff,) that he, (meaning the plaintiff,) was a man óf no character, and his word, (meaning the plaintiff’s word and character,) not to be taken ; he, (meaning the plaintiff,) had no property; that his property, (meaning the plaintiff’s property,) was all made over and mortgaged ; and ten dollars could hot be collected of him, (meaning the plaintiff;) if you, (meaning said Charles C. Mitchell,) had called on me, (meaning said defendant,) I, (meaning the said defendant,) would have given you, (meaning said Mitchell,) a history of his character, (meaning the plaintiff’s character,) at the time Barnes, (meaning the plaintiff,) got the goods, (meaning the goods bought of said Charles C. Mitchell by the plaintiff.”) By reason of the speaking of which false and scandalous words, in manner aforesaid, the plaintiff hath greatly suffered in his good name and reputation, as a merchant and trader, and lost the good will and esteem of persons of wealth and business, who of late have refused to entrust the plaintiff with their property, or to continue and carry on any commerce with him. Evidence, tending to prove that the words were uttered by the defendant, was introduced by the plaintiff. The court instructed the jury, that the words spoken as alleged were not actionable in themselves ; that the plaintiff, to maintain the action, must show special damage ; and. that, in consequence of the speaking of the words, some one person, at least, refused to give credit, or to trust the plaintiff with property, or to do business with him ; that, unless they were satisfied such were the fact, the verdict must be for the defendant. To which ruling the plaintiff excepted. To call a trader an insolvent or a bankrupt, is in itself actionable. 1 Pike, 110; Cheves, 17; 8 Porter, 486 ; Cro. James, 578; 3 Selwyn’s N. P. 1058 ; 2 Esp. N. P. chap. 10; 2 Strange, 762; L’d Raymond, 1480. The allegation of special damage is mere surplusage. Selwyn’s N. P. Title Slander. The words in this case were equivalent to calling the plaintiff a bankrupt. In common parlance, to call one a bankrupt, is equivalent to calling him an insolvent; that is, one not to be trusted, by reason of his insolvency. If the words were not actionable, the defendant ought to have demurred. When a count alleges the plaintiff to be a trader, and the words to have been spoken concerning him, the clear intendment of law is, that they were spoken of him in his character of a trader, and concerning his business as a trader.