Knickerbocker Life Insurance v. Ecclesine

I think both orders should be affirmed; the order discharging the arrest for the very satisfactory reasons stated by the learned justice at special term, and the other for the reason that if the averment of special damage is made definite in the particulars specified in the order, there will be a prima facie cause of action against the defendant. We all agree, that without proof of special damage the action cannot be maintained: in other words, we agree that with proof of special damage it may be maintained. As an allegation in a pleading, I think it would be sufficient, if it contained the matter required by the order, and that, it seems to me, is the only question before us on this appeal. The matter alleged against the defendant is not per se libelous ; but if the plaintiffs can satisfy a jury that such matter is injurious to them and was maliciously published, they can recover if they also show that they have been specially damaged.

Ereedmak, J., concurred.

If this action is sustainable at all, it must be on the ground that special damage has resulted from the writing of the words. Special damage then is the gist of the action. Being so, it must be *388laid in the complaint with particularity. A general averment of loss of customers will not suffice. The names of the customers who are alleged to have been lost must be given, and only the loss of the customers •so named can be proved. If no customers are named, then no proof of special damage can be given, and the action fails (1 Stark. on Slander, 441; 2 Id., 62; 1 (Chitty on Pl., 399 ; 2 Saund. on Pl. & Ev., 800). This doctrine appears to have been overlooked in the case of Shoe and Leather Bank v. Thompson, 18 Abb. Pr., 413, 417.

In the present case there is no sufficient averment of special damage, either in the complaint or any of the papers used in support of the order of arrest. There is, therefore, nothing to carry the case to a jury. The case then fads within that class of cases where the court wid not uphold an order of arrest.

Again: the words complained of do not of themselves import any injury to the plaintiff, nor do they afford any presumption, legal or otherwise, that their circulation is injurious. For aught that appears by the adegations of the complaint, the plaintiff’s mode of business, as stated by the defendant, was more beneficial to both stockholders and policy-holders than that of any other company. Therefore it does not appear that the words could or did injuriously affect the plaintiff’s business by deterring customers.

Consequently an adegation that there were other companies who did business on a more favorable basis, is material.

The.averment of special damage does not supply the want of such adegation, because the facts alleged do not show such damages to be the direct and legitimate result from the words used.

If, however, the special averment does supply the want of such adegation, it is then clear that the special damages constitute the gist of the action.

*389For these reasons I think the order vacating the order of arrest should be affirmed "with ten dollars costs.

With regard to the motion to make the complaint • more definite and certain, the above views call for a reversal.

That motion is applicable only when one or more of the allegations which go to make out the cause of action is or are indefinite or uncertain. But it cannot be resorted to, to compel the insertion of an averment which is necessary to make out the cause of action, or which changes the cause of action which the plaintiff insists on, or the grounds thereof on which he chooses to rely.

Now in this case there is no averment of special damage, and none can be proved (Herrick v. Lapham, 10 Johns., 281).

If the plaintiff succeeds under his present complaint it must be on the ground that the words are actionable ver se. True, I think, he cannot succeed on that ground. But he has a right to differ from me and place his cause of action on that ground alone, and we cannot compel him to add another ground, nor to claim special damages, if he does not desire to.

The order to make complaint more definite and certain should be reversed with ten dollars costs.

Both orders affirmed with costs.