Shultz v. Chambers , 8 Watts 300 ( 1839 )

The opinion of the Court was delivered by

Rogers, J.

The words laid in the second count are actionable without the aid of the colloquium and innuendo, as they impute to the plaintiff the commission of the crime of larceny. “You (meaning the plaintiff) took Katy’s money out of the hole; you robbed the gal, and if you don’t give her back her money you shall answer for it at the last day.” The plaintiff is charged with an offence, viz: the felonious taking and carrying away the money of another, deposited in a particular place. The word robbed is not used in its technical sense, but must, according to its general meaning, be taken as a charge of larceny, and an imputation of that description of offence to the plaintiff. But in the innuendo the words are explained as a charge of larceny and robbery, and it is urged that the count is bad, because the innuendo has carried the words beyond their natural import. But that this is no cause for arresting the judgment is decided in

That was an action of slander, in which the declaration set out that the defendant had charged the plaintiff with having had a criminal connection with a woman, but omitted to state that the plaintiff was a married man, and the innuendo explained the words to mean that the defendant had charged the plaintiff with adultery. A judgment for the plaintiff’ was held good, although it was truly objected that the words laid imputed fornication merely, and the innuendo explained this to be a charge of adultery. The answer to the argument, that the charge of adultery was the ostensible cause of action, and that it must be presumed that it was for this injury the jury gave the damages. The court, after acknowledging the full force of the objection, say, that it is notorious that juries are governed by the case proved, instead of the case laid. It is not too much to presume, that the jury gave damages for the cause of action laid in that respect in which alone it was maintainable. Here the action could be sustained only as a charge of larceny; and it would be doing no violence to the justice of the case to suppose that it was for that alone the damages were given, and to reject the other as surplusage. We must take it that the damages are nearly commensurate to the injury, as otherwise the court would have relieved the defendant on a motion for a new trial. It has ceased to be the practice to arrest judgments in actions for slander on frivolous and technical objections. While the court should take care not to encourage such actions, yet a very nice adherence to form may throw too many difficulties in the way, to render it a safe and certain mode of redress for one of the greatest injuries a person can receive. Unless the party has some redress for an injury to his character and reputation, we cannot blame him if he resorts to personal violence, and this it is the duty of all civilized communities, as far as possible, to avoid. But considering this as an imputation of two distinct offences, I can perceive no reason why they may not be joined in the same count; and where the slanderous words are spoken at the same time, this would seem to be the proper mode of declaring, although it may be otherwise where uttered at different times, and plainly and distinctly relating to distinct and different transactions.

The words, “ He had the money, for he hunted for it, and was seen there where the money was deposited,” are not actionable without the aid of a colloquium. But the key to the meaning is furnished by the colloquium to the second count, which the pleading incorporates into the third count, by a plain and distinct reference. And this helps the third count, which, without its aid, would be bad. Taken in connection with that count, it appears the words were spoken in a conversation in which it was alleged that certain money of one Catherine Chambers had been feloniously taken and carried away. These words the innuendo explains to mean that the defendant charged the plaintiff with having feloniously taken and carried away the money referred to in the colloquium. And this is strictly correct, for the office of an innuendo is to elucidate the words spoken, by connecting them with the subject to which they refer, and averring their meaning. They must not be contradictory, it is true, but here I can perceive nothing except in explanation of the natural import of the word, when taken in connection with the subject matter, in reference to which they were spoken; and this the jury have found.

Judgment affirmed.