Eisile v. Walther — 24 N.Y. St. Rep. 122

Majority

p. 122

Frederick Eisile, Resp’t, v. Bernhard Walther, App’lt.

(City Court of New York

General Term,

Filed February 26, 1889.)

Headnote

Slander—What, words not actionable without proof of special DAMAGE.

The plaintiff and defendant took part at a shooting festival. Both competed, and plaintiff claimed a score of fifty-two points and demanded the prize. The defendant then said, in the presence of the company, “ that plaintiff did not score fifty-two points, that he was bluffing; that he had tried a bluff game before, and was a swindler; he had swindled, and they were glad they had caught him at last.” The defendant had an interest in the subject matter of the communication, and the persons to whom the . communication was made a corresponding interest therein. Held, that the words were not actionable without an allegation and. proof of special damages.

Appeal from judgment entered on the verdict of the jury in favor of the plaintiff.

Kauffman & Sanders, for def’t-app’lt; Charles StecMer, for plt’ff-resp’t.

The plaintiff and defendant were guests at a shooting festival of the Independent German Schutzen Corps, held on the 28th day of June, 1887, at Lion Brewery. Plaintiff and defendant, as well as others, competed for the-first prize, to wit, a gold medal of the value of forty dollars. Each person shooting was furnished with a score card, on which was recorded the score each person received after the shooting. The plaintiff claimed a score of fifty-two points, and demanded the prize.

The defendant said in the presence of the company “that the plaintiff did not "score fifty-two points; that he was-bluffing; that he tried a bluff game before, and was a swindler—he had swindled—and they were glad they had caught him at last.” The defendant had an interest in the subject matter of the communication, and the persons to whom the communication was made, had with the plaintiff a corresponding interest therein.

The defendant certainly had the right to dispute the claim that the plaintiff scored “fifty-two points. If he had done nothing more, an action for slander would not have been thought of; adding that the plaintiff was “bluffing ” and had played a ‘ ‘ bluff ” game before, adds no force to the charge, nor do the additional words that it was “a swindle,” and that the plaintiff had swindled before, make them actionable without an allegation and proof of special damages.

p. 123

Chase v. Whitlock, 3 Hill, 139 ; Savile v. Jardine, 2 H. Bl., 531; Odiorne v. Bacon, 6 Cush., 185 .

The words used had reference to the score of “ fifty-two ” claimed by the plaintiff, and in the sense employed they were tantamount to saying that the plaintiff had claimed too much, or, in other words, that the claim was an imposition. The words used were strong and exaggerated, rude and vulgar, but not necessarily slanderous. Special damages were not pleaded and were not proven, and the words taken either collectively or separately are not actionable. They did not charge the plaintiff with crime, nor with an attempt to commit crime. The plaintiff had a right to claim any score he honestly believed he was entitled to, and the defendant had the corresponding right to object to any claim he thought was exaggerated or unjust. We think he did this; nothing more.

For the reasons stated, the motion to dismiss the complaint ought to have been granted, and the exceptions to the refusal are well taken. The judgment entered on the verdict in favor of the plaintiff must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.