Leitz v. Hohman , 16 Pa. Super. 276 ( 1901 )

Opinion by

Rice, P. J.,

Mr. Justice Clash, in an elaborate and convincing opinion reviewing the leading cases upon the subject of slander charging an indictable offense, approved the rule laid down in Brooker v. Coffin, 5 Johns. 190, saying that the cases in Pennsylvania are in accord with it, and that it is the true rule. It is as follows : “In case the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable : ” Davis v. Carey, 141 Pa. 314. It is for the court to decide whether the words laid in the plaintiff’s statement are capable.of the meaning ascribed to them by the innuendo, and for the jury to decide whether such meaning was truly ascribed to them. See Price v. Conway, 134 Pa. 340, and cases cited. The court committed no error in this regard and the verdict of the jury has established the fact that the defendant uttered the words with the meaning ascribed to them. To charge a butcher with knowingly selling diseased meat whereby his customers are being made sick is to impute to him an indictable offense and one involving moral turpitude in the ordinary and well understood meaning of those terms ; it moreover, has a tendency to injure him in his trade or calling. Applying the test of the rule above quoted, the learned judge was clearly right in refusing to charge that the words were not actionable per se, and he did not overstep the bounds of judicial propriety in stating in vigorous language the reasons why he could not so charge. But in answering the defendant’s next point, ninth assignment, it seems to us that the distinction between the proof essential to the right of action, and the proof essential to a recovery of special damages was lost'sight of. “ General damages are sncb as tbe law will presume to be tbe natural or probable consequence of the defendant’s conduct. Such general damages will only be presumed where the words are actionable per se. If any special damage has also been suffered, it should be set out on the pleadings, but should plaintiff fail in proving it at the trial, he may still resort to and recover general damages:” Odgers on Libel and Slander (Bl. ed.), *293. On page 297, the same author says: “ Special damage is such a loss as the law will not presume to have followed from the defendant’s words, but which depends, in part at least, on the special circumstances of the case.” These rules are in accordance with our own decisions. In Wallace v. Rodgers, 156 Pa. 395, a case where the words were actionable per se, and admittedly the plaintiff was entitled to recover general damages, Mr. Justice Dean said: “But where special damage is claimed it should be distinctly averred, and where caused by the mere repetition of an accusation, the wrongdoing of defendant, as cause of the special injury, should be proven.” The cases cited by the plaintiff’s counsel are not in conflict with this doctrine. All that they decide is that when words are spoken of another in the way of his or her trade or profession, an averment of special damage is not necessary to maintain the action. Not one of them goes to the extent of holding that even in such a case special damages may be recovered without proof. Under the pleadings in the present case, the plaintiff would have been entitled to recover special damages if the proofs had warranted it. Without such proof, the words being actionable per se, he was entitled to recover general damages, which might be a substantial sum; in other words, the jury were not bound to give nominal damages only: Tripp v. Thomas, 3 B. & C. 427; Odgers on Libel and Slander (Bl. ed.), *293; 13 Am. & Eng. Ency. of Law (1st ed.), 432. But, although special damage, namely, that he lost the trade of divers persons who had been accustomed to buy meat from him, was sufficiently averred in his statement of claim, yet, as the proofs failed to sustain this averment, he could recover general damages only. Therefore, the point should have been affirmed. Whether or not the affirmance of the point would have made a difference in the verdict we cannot say, but as it might have done so we are compelled to sustain the assignment.

We held in Dreibilbis v. Esbenshade, 6 Pa. Superior Ct. 182, that it is not competent in an action of slander for the plaintiff to repeat upon the witness stand the statements of his witness of what was said to the witness by the defendant. Proof that a witness has made statements out of court consonant with his testimony is sometimes admissible, but not in chief, nor until after his veracity has been attacked. See Quigley v. Swank, 11 Pa. Superior Ct. 602, Commonwealth v. Kay, 14 Pa. Superior Ct. 376, at p. 387, and cases there cited. No occasion had arisen, at the time it was offered, for the admission of the testimony embraced in the first assignment of error. It was, therefore, mere hearsay, and should have been excluded.

We think it altogether probable that the defendant’s case was not harmed by the exclusion of the cumulative evidence of Frank G-. Mattérn as to what he heard George Ferguson tell the defendant (third assignment). But as the case must go back for a retrial, we remark that it was corroborative of the testimony of George Ferguson upon the same subject which was admitted. The fact testified to by Ferguson, and offered to be proved by Mattern, would not constitute a defense, but it might go in mitigation of damages, or at least be proper for the jury’s consideration upon the subject of vindictive damages. Especially would this be true if, as the defendant alleged, he qualified his utterance of the defamatory words by the statement that he was repeating what was told him. If the defendant had attempted to prove general rumors in the neighborhood, a different question would be presented and a different rule would apply: Lukehart v. Byerly, 53 Pa. 418; Pease v. Shippen, 80 Pa. 513.

Except for the inadvertent expression that the defendant “ admitted ” that the charge testified to by the plaintiff’s witnesses was not true, the instructions given in the general charge are free from substantial error. Whilst the defendant did not swear that the charge was true, but admitted that he did not know whether the plaintiff sold diseased meat or not, it was not strictly accurate to say that he admitted that the charge was false.

The other assignments do not seem to us to require particular notice, further than to say that we find no error therein calling for reversal. For the reasons above stated the first, third, fourth, seventh and ninth assignments are sustained. The second, fifth, sixth and eighth are overruled.

Judgment reversed and a venire facias de novo awarded.