Nash v. Fisher

Wyoming Supreme Court
Nash v. Fisher, 24 Wyo. 535 (Wyo. 1917)
162 P. 933; 1917 Wyo. LEXIS 3
Beard, Potter, Scott

Nash v. Fisher

Opinion of the Court

Beard, Justice.

Warren C. Fisher, as plaintiff, recovered judgment in the district court against John C. Nash for $150.00 damages and costs in an action for slander. From that judgment Nash brings error.

The principal question here is one of pleading. It is contended that the petition upon which the' case was tried does not state a cause of action. The allegations of the petition necessary to present the question are as follows: “That on the 13th day of June, 1913, the defendant in the presence of divers good and worthy persons, who heard him, spoke the following words concerning' the plaintiff, 'speaking of two citizens of Hillsdale, one is a confessed thief and the other is a wife murderer, .Warren Fisher starved his first wife to death.’ * * * * That said words, so spoken by the plaintiff of the defendant were false, and by reason of the speaking, publishing and uttering of them, the plaintiff has *541been greatly injured in his good name and reputation, to his damage in the sum of ten thousand dollars.”

The words “plaintiff” and “defendant” near the beginning of the last sentence quoted must be transposed in order to make the statement have any meaning applicable to the former allegations of the petition. But as no objection is made on that ground we will treat those words as transposed. The petition also contained a charge of the speaking of other words at another time, but they were taken from the jury by the court and the case submitted to -the jury upon the allegations above set out. No demurrer was filed to the petition, and the answer consisted of a general denial. When the first witness was called and, sworn, defendant objected to the offering of any. evidence on the part of the plaintiff for the reason that the petition did not state a cause of action. The objection was overruled, to which ruling exception was taken by defendant. The same question was also raised by motion for a,directed verdict at the close of plaintiff’s evidence, which motion was also denied. The ruling of the court that the facts stated in the petition were sufficient to constitute a cause of action is the chief alleged error. It is contended that the words alleged in the petition to have been spoken are not actionable per sef and the petition containing no statement of “matters of inducement, colloquium or innuendo,” and there being no averment of special damages, no cause of action was stated. Counsel for plaintiff in error concedes that if the words 'charged to have been spoken are actionable per se, then the petition is sufficient. It is argued, first, that the language is indefinite and uncertain as to which of the “two citizens .of Hillsdale” was referred to as “a wife murderer.” But we do not think the language used is uncertain or indefinite in that respect, or that any one hearing the same would-entertain any doubt but that Warren Fisher was the one accused of having murdered his first wife. It would certainly -be a very strained construction of the language, “-speaking of two citizens of Hillsdale, one is a confessed thief and the other is- a wife murderer, Warren Fisher starved his first wife to death,” *542to apply the charge of wife murder to the one spoken of as a thief.

It is urged that- the words charged to have been spoken are not actionable per se because the accusation of wife murder is shown to have been used in a qualified and restricted sense by being followed by the words, “Warren Fisher starved his first wife to death,” and that those words do not imply the commission of the crime of murder. But we do not so construe the language. Considering the entire statement and the connection in which it was used, which must be done in order to arrive at its true meaning, it conveys to our minds, and we think it would naturally be understood by those who heard the words spoken, as charging the plaintiff with having unlawfully and feloniously caused the death of his first wife by starvation, and imputed to him a criminal offense involving moral turpitude and for which, if the charge were true, would subject him to infamous punishment both at common law and under the statute. There was ■ a direct accusation that plaintiff was “a wife murderer,” which language is clearly actionable per se, and the further statement that he “starved his first wife to death” would naturally be understood by the hearers as explanatory of the means used to commit the crime. The words were obviously defamatory; and in Newell on Slander and Libel (3rd Ed.) 342, the rule is stated:- “In pleading this class of words no innuendo is necessary. Nor is parol evidence admissible to explain the meaning of the words. The defendant cannot be heard to say that he did not intend to injure the plaintiff’s reputation, if he has in fact done so. The question is still, however, for the jury; but the court will practically instruct them that the words are actionable and that they should find for the plaintiff. But the defendant may plead circumstances which make it clear that at the time he spoke or wrote the words they were not used in their ordinary signification, and thus render the words prima facie defamatory only. It will then be a question for the jury how the by-standers understood the words. This question can only arise where the words are susceptible of *543the innocent meaning which the defendant seeks to place upon them, and where also the circumstances which are alleged to qualify the injurious words were known to' the bystanders at the time.” (See authorities cited in notes to above quotation.)' Also where the words' complained of are ambiguous and though apparently defamatory are, on their face, susceptible of an innocent meaning, no innuendo is necessary; but the defendant may plead circumstances showing that the words were not used by him in their ordinary signification. (Idem, 345, and cases cited in notes.) It is also too well settled to require the citation of authorities that where the words are actionable per se it is not necessary to allege or prove special damages. The petition in the present case comes within the rules above stated, and the court, did not err in holding that it stated a cause of action.

The plaintiff in error insists that the verdict and judgment are not sustained by the evidence. The speaking of the words charged, in the presence and hearing of others, was sufficiently proven, and the court instructed the jury that “It is for you to say whether the words used by defendant to the witnesses Bolin were intended to and did impute the crime of murder to the plaintiff, and whether the said witnesses or either of them could naturally infer and did infer therefrom that the defendant intended to and did charge the said Fisher with the felonious killing of his first wife, and in order to justify you in returning a verdict for plaintiff for any sum whatever you must find the words used by defendant to the witnesses Bolin concerning plaintiff were such as to naturally give rise to the inference that the plaintiff was being accused by defendant of being guilty of having feloniously killed his first wife, and that said witnesses did so infer from said language that the defendant was being charged with having feloniously killed his first wife.” From the words uséd we think the hearers would naturally infer that plaintiff was thereby accused of felonious homicide, at least that such inference could be fairly drawn therefrom by the jury, and it was left to them to say *544whether upon all of the evidence the hearers so understood the statement. We have carefully read all of the evidence, and, without ’setting it out at length, we are of the opinion that it is sufficient to sustain the finding of the jury; especially as no circumstances were pleaded by the defendant showing that the words were not used or understood in their ordinary signification.

We perceive no error in the record, and therefore the judgment is affirmed'. Affirmed.

Potter, C. J., concurs. Scott, J., did not participate in the opinion.

Reference

Full Case Name
NASH v. FISHER
Cited By
1 case
Status
Published