Chace v. Sherman

Devens, J.

The instructions requested by the defendant were given, except that there was “no testimony upon which the jury would be authorized to find that the words contained in said declaration have been so proved, so far as to constitute slander,” which was refused.

The object of the mode of pleading prescribed by the Gen. Sts. c. 129, is to inform the defendant, not only of the nature of the charge alleged to have been made by him, but of the language in which it was uttered ; and it would not be competent to prove the same charge made by words substantially different from those set forth. Baldwin v. Soule, 6 Gray, 321 . Lee v. Kane, 6 Gray, 495 . Doherty v. Brown, 10 Gray, 250 . Payson v. Macomber, 3 Allen, 69 . Clark v. Brown, 116 Mass. 504 . It is not, however, necessary to prove that the words were exactly those set forth in the declaration, but only substantially so, in order that it may appear that the crime was charged in the manner in which the plaintiff alleged it to have been charged. Baldwin v. Soule, ubi supra. Robbins v. Fletcher, 101 Mass. 115 .

Upon the proof there must be deemed to have been evidence of the words substantially as the plaintiff alleged them, and sufficient to show that the crime was charged against the plaintiff as he alleged it to have been. Baldwin v. Soule, ubi supra. Dancas ter v. Hewson, 2 Man. & Ry. 176. All the statements proved were accompanied by other statements as to the purpose for which the plaintiff burnt the mill, namely, to get the insurance upon it, which, important as they were in characterizing the charge, were not set out in the declaration; but these latter in no way diminished the effect of the words alleged, but on the contrary tended to show that they were used with the same meaning which the plaintiff sought to attribute to them. There was, therefore, testimony in the case that the words alleged had been used; and that they had been so used as to constitute slander was *391 also clear, as all of them had been uttered in connection with a statement that the purpose of the plaintiff had been to obtain payment for his mill, thus burnt, from the insurers.

The defendant contends that it is not actionable to accuse one of burning his own mill, and that so much of the declaration, as charges the plaintiff merely with this, sets forth no actionable slander, and must therefore be rejected. Bloss v. Tobey, 2 Pick. 320 . Tebbetts v. Goding, 9 Gray, 254 . But these words, when used in certain connections, are actionable; and the declaration alleges that, by the use of these words as set forth, the defendant charged the plaintiff with the crime of wilfully burning the mill with intent to defraud the insurers. It is the duty of the plaintiff, indeed, when the words are not in themselves intelligible, in the same sense in which he claims them to have been spoken, to make them so by a concise and clear statement, and by reference to such facts as may be necessary for that purpose, and, if he does not do this, the defendant may demur to the declaration. Gen. Sts. c. 129. Brettun v. Anthony, 103 Mass. 37 . York v. Johnson, 116 Mass. 482 . But this rule is for the benefit of the defendant, and if, because he is sufficiently informed of the connection in which the words were used, or of the facts to which they refer, or for any other reason, he neglects to demur, he cannot at the trial object to the insufficiency of the declaration, because it fails to show how or in what connection words, innocent of themselves, were used so as to import the crime which the plaintiff avers to have been charged by them. Clay v. Brigham, 8 Gray, 161 . The question, then, to be passed upon is only whether the defendant used the words, making thereby the charge which the declaration avers that he did.

As argued by the defendant, the question of the legal insufficiency of the facts to constitute a defence or establish a right of action may be raised by a request for a ruling at the trial as fully as if there was a demurrer. Montague v. Boston & Fairhaven Iron Works, 97 Mass. 502 , This, however, is quite a different proposition from that which he seeks to establish, namely, that where sufficient facts. are shown to maintain the action he may avoid their effect because they have been defectively set forth. Enough was set forth by the declaration to show a cause of action, unless it were demurred tc for its deficiency, Clay v. Brigham, ubi sufra.

*392 The defendant contends that the answer raises the question of sufficiency of the declaration. On examining it we do not find any intelligible demurrer, certainly not one in the form required by Gen. Sts. c. 129, § 11. If there were one, however, in every respect formal, it could not be now discussed. There is nothing to show that it was insisted upon at the trial, called to the attention of, or passed upon by, the presiding judge. Had he upon demurrer ruled the declaration sufficient, the defendant might have presented the matter by a proper exception to this court. Had he held the declaration insufficient, the plaintiff could have applied to him for leave to amend, which, on terms which he deemed suitable and just to both parties, he would undoubtedly have granted. Exceptions overruled.