Fawsett v. Clark

Bowie, J.,

delivered the opinion of the Court.

The appellee in this case sued the appellant in the Superior Court of Baltimore City, in an action for slander.

The nar. contained three counts ; the first, charged the defendant with falsely and maliciously saying of the plain *501 tiff, “ You are a thief.” The second count alleged, the defendant falsely and maliciously published of the plaintiff, the words following, viz., “ You are no better, than a thief.” And the third count charged, that the defendant intending to injure the plaintiff in his good name, etc., falsely and maliciously spoke and published of the plaintiff, the words following, that is to say, “ You are a confidence man,” thereby, and then and there meaning that he, the plaintiff had been and was guilty of obtaining by false pretence from some other person, some chattel, etc., with intent to defraud such person.

The defendant pleaded “non cul.”

At the trial the plaintiff, to maintain the issue joined on his part, testified in his own behalf that he was a cattle dealer at Calverton Drove Yards; that in the spring of 1875, Messrs. Baugher & Redsecker, proprietors of the Calverton Drove Yards failed, and the plaintiff succeeded them in the fall of 1875 ; that he bought from Baugher with defendant’s approval, a quarter interest in two trotting horses, in which Fawsett had an interest, and had authority from Baugher to settle the earnings of the horses with Fawsett, who had the management of the horses ; Fawsett gave a statement and plaintiff asked for an itemized acJ count which Fawsett gave; which did not contain an item of $100 for cash paid one Doty for driving; he then gave another account containing this item, and exceeding the former account by at least $1000 for the same period ; the plaintiff then wrote to Doty to inquire if the charge- of $100 was correct, and also wrote to others. Doty sent plaintiff’s letter to Fawsett. Witness further testified, that on Tuesday, before the 24th May, 1876, it being market morning, a number of persons about, he was at Calverton Hotel when Fawsett came in, handed witness Doty’s letter and asked witness if he had written it, and why; witness told him, “ Because he had a right do it;” Fawsett said, ‘c that if he had been at home when he received the letter *502 he would have cowhided witness “said I was a liar,” “ said I was a confidence man,” “ no better than a thief”— “ yes, a thief,” etc. Several other witnesses were called on the part of the plaintiff. John Winyard testified, that he heard, on the occasion in question Eawsett call Clark a liar and a thief, said he would steal and rob.

On cross-examination he said, Eawsett had a letter, and asked him Clark if he wrote it; Eawsett said, Clark had acted like a thief; he said that in connection with that letter.

S. D. Hawkins, in his examination-in-chief by plaintiff, testified “ Eawsett walked over to Clark, shewed him the letter ; asked him if he had written it, said no gentleman would have written such a letter ; told him that he was a “ confidence man,” “ no better than a thief,” said “ he was a thief,” or “ no better than a thief.”

Being cross-examined, this witness said, that the whole quarrel had reference to the letter. The substance of what Eawsett said to him was, you have charged me with malting false accounts.

The defendant was examined in his own behalf, and deposed substantially to the same facts, saying “that the letter caused all that was said, there was no other trouble between them.”

The appellant offered five prayers, the first four were rejected, and the fifth conceded. The appellee submitted one prayer which was granted. The appeal is taken from these rulings below. Omitting the second of the appellant’s series, (which was not insisted on in this Court,) they all maintain the proposition, that the words spoken, though actionable “per se,” if spoken in relation to a subject as to which no larceny or felony was capable of being committed, or was committed, the charge will not be actionable.

The first prayer was refused absolutely, the third and fourth upon the ground that there was no evidence to *503 sustain them ; from which it might be inferred that if there had been in the judgment of the Court below, evidence tending to show the words were used in relation to the letter, or the matters contained in it, those prayers would have been granted.

The doctrine of the elementary writers on slander is, that words should be construed in reference to the subject-matter — “ Words may import a charge of felony, yet if it appear that the fact charged could not have happened, an action cannot be maintained.” Snagg vs. Gee, 4 Co., 16 (a,) 2 Bing. N. C., 402 ; Stephens’ Nisi Prius, 2553.

Lord Hobart says, “the slander and damage consist in the apprehension of the hearers ; and in Gilbert’s Oases on Law & Equity, the rule laid down is, that the words shall be taken in the sense in which the hearers understood them.” Ibid; vide also, 1 American Leading Cases, Hare & Wallace, 118, Notes to Broker vs. Coffin, etc., 3rd Edition.

Lord Denman (in the case of Read vs. Ambridge, 6 C. & P., 308,) after having stated to the jury, that the first question for their consideration was whether they thought the words showed an intention to impute felony, observed “ It is said, that the words evidently meant, that the plaintiff had rohbed Mrs. Read, by injuring her in trade.” But if the defendant meant to convey that' meaning, it seems to me he should have used very different words. It is not enough that he had some reservation in his own mind. The question is, what he meant to make other people believe ? whether he meant to have it understood by others, that the plaintiff had committed a felony ?

. The words used in this case, were, “ Do you know that you are extremely wrong for putting that damned thief's name in your window ; he is the most blasted thief in the world, and ought to have been hung with his aunt years ago. You may tell him from me, that he is a bloody *504 thief, and I can prove it; and he ought to he hung.” The-jury found a nominal verdict for the plaintiff.

Mr. Chitty, in his note to 3 Black. Com., 123, upon injuries affecting reputation, after specifying words which are actionable in themselves, says, “ The accusation however must he precise, or have such an allusion to some prior transaction, that the hearers of the slander must necessarily have understood that the slanderer meant to impute to the plaintiff, guilt of some punishable offence ; for though'the rule of construing words c in mitiori sensu,’ is now exploded, yet an innuendo or construction cannot be given to words, which they do not necessarily import, either of themselves, independently of any other circumstances, or with necessary reference, or some other circumstances occurring at the time of the accusation. 6 T. R., 691 ; 4 Co., 17 b. ; 11 Mod., 99, etc.” In the case of Garret vs. Dickerson, 19 Md., 418 , this Court recognized this principle, and said in case of slander, words take their actionable character from the sense in which they appear to have been used, and that in which they are most likely to he understood by those who hear them — vide also, 2 Greenleaf’s Ev., sec. 417, 13th Edition, p. 378.

The words laid in the several counts, both those which are actionable “per se,” and those which are not, are charged' as being spoken in the second person, addressed to the plaintiff himself.

The evidence of the plaintiff, testifying for himself is, that these words were part of a violent, verbal remonstrance by the defendant, against the conduct of the plaintiff, in writing a letter to a third person, relating to defendant's transactions with him — Referring to the letter and its contents, the defendant said the plaintiff was “a liar,” “ a confidence man ” — “no better than a thief,” — a thief— that the plaintiff “had sued him,” and he had offered to pay more than I, (the plaintiff,) would ever get — “ the *505 substance of what Faiosett said in regard to the letter loas, that I, {the plaintiff,) had charged him therein with making false accounts.”

All the witnesses corroborate this view. The circumstances show, that the terms of reproach used were mere abuse, — the outpouring of passion; “liar,” “thief,” “confidence man,” were uttered in quick succession, in reference to the contents of the letter, explaining to all who heard them, the sense in which they were used.

“In an action of slander for words, some of which if spoken and understood in their ordinary sense, would certainly he actionable, the jury may consider whether taking the whole conversation together, the particular words are so qualified by the other parts of the conversation, as to show that they were not intended to convey the idea which their primary and ordinary meaning would give.” Shipley vs. Todhunter, 7 C. & P., 680 ; 8 Stephens’ N. P., 2575.

Measured by the standard of these authorities, we think there was evidence offered by the defendant, tending, to show that the words used by him were not intended to impute to the plaintiff a felony or other infamous crime, and the third and fourth prayers of the defendant, instructing the jury if they found they were not so intended, the plaintiff was not entitled to recover, should have been granted.

The defendant’s first prayer, announcing the same principle, allowed the plaintiff nominal damages, and being inconsistent in that respect, with the third and fourth, was properly rejected.

The plaintiff’s prayer prescribing the measure of damages is not obnoxious to the objection urged by the appellant, that it assumed the appellee had a right to recover on the third count. On the contrary, it is put hypothetically, viz., “if the jury shall find for the plaintiff, upon any count in the declaration.”

*506 (Decided 2nd May, 1878.)

The third and fourth prayers of the appellant being improperly rejected, the judgment below will he reversed, and a new trial awarded.

Judgment reversed, and new trial aioarded.