p. 277James R. Vaus, App’lt, v. Elijah B. Middlebrook, Resp’t.(City Court of New York, General Term,Headnote
Libel and slander—What words actionable per se.The combination of words “Vous is a rascal and is not to be trusted; I have papers in my pocket on which he could be sent to State prison; he gave me a chattel mortgage on some of his property, and disposed of the property before paying the mortgage,” is actionable per se.
The action was brought to recover $2,000 damages for slander uttered by the defendant of and concerning the plaintiff. The words charged were “Vous is a rascal and is not to be believed; I have papers in my pocket on which he could be sent to state prison; he gave me a chattel mortgage on some of his property, and disposed of the property before paying the mortgage.” The defendant interposed an answer upon the merits, and on the trial moved to dismiss the complaint on the ground that it failed to set forth facts constituting a cause of action, in the absence of an allegation of special damages. The motion was granted, and from the judgment entered on the dismissal the plaintiff appeals.
E. Fixman, for appl’t; R. S. Newcombe, for resp’t.
The combination of words uttered by the defendant concerning the plaintiff, according to their natural import, charge the plaintiff with a criminal offense, to wit: with selling and disposing of mortgaged chattels. Laws 1871, chap. 77, Penal Code, § 571. The words are therefore actionable per se, and an allegation of special damages was unnecessary. That the sale was made “with intent to defraud the mortgagee ” is a necessary averment in an indictment; but slander to be actionable per se need not be charged in the language of the statute,' nor with the particularity required in an indictment. Odger’s on Slander, 60. The charge of selling mortgaged property was accompanied by the declaration that the defendant had papers in his pocket on which the plaintiff could be sent to prison. The papers referred to were evidently the mortgage, and the words used must be construed together, as they were intended as but one charge, which, by a fair interpretation, amounts to a criminal offense under the statute. ■
p. 278The words can hardly bear an innocent construction, for people are sent to state prison for crime. But assuming, as we do, that the words are capable of two constructions, one imputing crime and the other not, it is for the jury to determine in what sense the words were uttered and understood.
Hayes v.
Ball, 72 N. Y., 418 ;
McGibben v.
Young, 20 Weekly Dig., 12;
Quinn v.
O’Gara, 2 E. D. Smith, 388. Thus, whether or not defendant used the word “thief,” as imputing a felony:
held, properly submitted to the jury to determine the sense in which the word was uttered.
Middleton v;
Walter, 1 Weekly Dig., 407; aff’d 67 N. Y., 584 . This is upon the familiar rule that where statements are made which bear two constructions, and in respect to which intelligent persons may honestly differ, the case must go to the jury to determine which construction was intended and understood by the parties, to the end that the proper interpretation may prevail in determining the question whether a cause of action exists or not. The trial judge should have permitted the plaintiff to enter upon his proofs, and should, if necessary, have sent the case to the jury to determine whether the defendant intended to impute crime to the plaintiff, or whether the words were used and understood by those present merely as general terms of abuse ánd without imputing anything criminal. Odgers on Slander, 60;
Hayes v.
Ball, supra, and other cases cited. He erred in dismissing the complaint, and in refusing to hear the plaintiff’s evidence. For this error the judgment must be reversed - and a new trial ordered, with costs to the appellant to abide the event.
Nehbras and Hyatt, JJ., concurred.