Herrick v. Lapham — 10 Johns. 281

Majority

p. 285

Herrick against Lapham.

ALBANY,

August, 1813.

Headnote

i„ actioa« where^ themselves, the proof of damage must be confined to the particular damage alleged in the declaration. The plaintiff cannot ■ give evidence of a general loss of reputation by reason of the slander.

THIS was art August, 1813. of slander. The cause was tried before Mr. Justice Yates, at the Dutchess circuit, in September, 1812. The declaration stated that the plaintiff was a merchant and trader, Sec. That on the 21st June, 1811, the defendant said of him to

p. 286

one Moses Tallmadge, in the hearing of him and others, “ he (meaning the plaintiff) is in gaol, and you will lose the debt he owes you.” And also, that on the same day, the defendant said to the said Tallmadge, and in the hearing of others, “ he (the plaintiff) is a bankrupt, and unable to pay his debts.” And, again, on the 20th December, 1811, the defendant said of the plaintiff, “ he is a bankrupt and unable to pay his debts; I know that he owes one man on Long Island 3 7",000 dollars.” And again, “he (the plaintiff) is broke, and his store shut up, and he is on the limits.” The plaintiff alleged the words to be spoken maliciously and falsely, and that by reason of speaking the said words, he had been much injured and hurt in his good name, credit and reputation, and had been suspected of dishonesty and bankruptcy, &c. and that by reason of speaking the said words, several merchants and traders in the city of Nem-York, of whom the plaintiff had been accustomed to purchase large quantities of goods on credit, to wit, Johnston <§• Halstead, and others, (naming them,) had discontinued all further dealings with the plaintiff, and had refused to give him any further credit; and also that divers persons (naming them) had refused to sell him produce, &c. and the directors of the banks (naming them) had refused to discount his notes, or continue the credit before given to him. And that other persons (naming them,) of whom he had been accustomed to borrow large sums of money, had refused to trust him, Sec. '•

On the trial, after the plaintiff had produced several witnesses to prove the words spoken by the defendant, A. Wheeler, a witness sworn on his part, was asked by the counsel, if in consequence of the report circulated by the defendant, the plaintiff had not sustained a general loss of reputation, and suffered material injury in his credit ? This evidence was objected to by the defendant’s counsel, but the objection was overruled by the judge. The witness stated that the plaintiff was a merchant and in good credit, until, in the summer of 1811, his credit was much injured among the people in Amenta, where he lived, in consequence of a report that he was broke, &c. Several witnesses testified as to the special damages, arising from the words as stated in the plaintiff’s declaration. A witness was asked what were the profits of the plaintiff’s business up to the year 1811, as appearing from his books. This evidence was objected to, but admitted by the judge to show the extent of the plaintiff’s business as a merchant; and it was proved

p. 287

i.hat for 4 years previous to the spring of 1811, the average anana! profits of the plaintiff’s business was 6,567 dollars.

The judge, in his charge to the jury, stated that the plaintiff, on the evidence, was entitled to recover, but that the amount of damages was a matter for their determination; that the plaintiff had proved a general loss of credit, and special damages in some of the cases laid in the declaration, and that if the jury were convinced by the ■ evidence, that such general loss of credit and the special damages arose from the defendant’s speaking the words in question, they should take them into consideration in making up their verdict, otherwise, not. The jury found a verdict for the plaintiff for 500 dollars.

A motion was made to set aside the verdict, and for a new trial: because,!. The judge admitted improper evidence; 2. Because he misdirected the jury; 3. Because the verdict was against evidence ; 4. Because the damages were excessive.

D. Ruggles, for the defendant.

The judge admitted evidence of damages arising from a general loss of credit, or general da-mages. The witness might as well have been asked to give his opinion how much damages the plaintiff had sustained. General damages are such as the law implies as arising from the injury sustained. Special damages are not implied by law, but are such as in fact have happened. The special damage must be particularly stated in the plaintiff’s declaration, otherwise he cannot give evidence of it. If so, the damage must be proved as laid.^[1] And the particular damage for which the plaintiff proceeds must be the legal and natural consequence of the words spoken.^[2] Where an action is brought for words not actionable in themselves, but it is necessary to allege particular damage, no evidence is admissible except to show the particular damage laid in the declaration. If the jury are to give the particular damage proved, and also for the general damage, the plaintiff will recover double damages.

T. A. Emmet, contra.

Where a wrong has been done the law implies simply the fact of damage, not the extent or quantum of that damage, which must be shown by evidence. In case of an assault, the law infers damage; but the plaintiff may prove the circumstances under which the assault was made, to assist the jury in ascertaining the amount of the damage. There, ii no danger of the jury giving double- damages. The

p. 288

dence is merely to assist them in ascertaining the damage really sustained by the injury of which the plaintiff complains. The jury are not to be confined to the damage which is the direct and immediate consequence of the act. The defendant must answer for all the consequences of his own illegal conduct.

It was matter of inference for the jury, whether damage was the consequence of the reports propagated by the defendant. A judge is bound only to state the law to the jury. He may give his opinion as to inferences from facts, but he is not bound to do so. The charge, however, was correct.

P. Ruggles, in reply, observed,

that the plaintiff could not first prove special damages from the particular slander, and then show a general loss of reputation as a ground of damage. A. is not to be made answerable for the slanders propagated by B., C. and D. Speaking the words by a single individual does not amount to a general slander. A general loss of reputation can never be proved as a fact.

The verdict in this case must be set aside and a new trial awarded, on the ground that the plaintiff was permitted to inquire of witnesses whether he had not sustained a general loss of reputation, and suffered a material injury in his credit, in consequence of the reports circulated by the defendant. This inquiry was illegal. When words are not actionable, unless special damages are alleged, the proof of damages must be confined to-those laid in the declaration. And if the words are actionable the law implies damages, the extent of which, in either case, is to be judged of by the jury from the facts proved, the circumstances and aggravation attending the uttering the slanderous words. To call upon witnesses to say whether a party has not sustained or suffered a material injury by reason of the slander, is asking their opinion only, and putting them in the place of the jury, to draw conclusions from the facts proved in the cause. This cannot be admitted.

New trial granted,