Hyperlawhypertext legal database Nealon v. Frisbie 63 N.Y. St. Rep. 458

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Nealon v. Frisbie

63 N.Y. St. Rep. 458 Court N.Y. Super. Ct. Decision date 1895-01-07 English

Delivered by McAdam, J.

Contents

Majority

p. 458
Bridget Nealon, Resp’t, v. Mortimer A. Frisbie, App’lt.
(New York Superior Court, General Term,
Filed January 7, 1895.)

Headnote

1. Slander—Actionable per se.
' The words “a God-damned Irish bitch,” applied to a female, though opprobious, do not necessarily impute want of chastity, and are not necessarily actionable per se.
2. Same—Innuendo.
Where words are not actionable per se, and do not on their face convey a slanderous imputation, there must be a collegium connecting it with the words spoken and an innuendo showing the injurious sense in which they were uttered.
The action is for slander, and the complaint in these words: “ That on or about the 30th day of November, 1893, at the premises No. 228 West Fifty-ninth street, in the city of New York, the •defendant in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff the false and defamatory words following, to wit: That he called the plaintiff a Goddamned Irish bitch, whereby the plaintiff was injured in her reputation to her damage the sum of $5,000.”
p. 459
The defendant demurred, on the ground that the complaint did not state,, facts sufficient to constitute a cause of action. The court below overruled the demurrer, and from the interlocutory-judgment entered thereon the defendant appeals.
J. M. Ferguson, for app’lt; P. A. McManus, for resp’t.

The words charged, though opprobious, do not necessarily impute want of chastity, and are not necessarily actionable perse. Phillips v. Baldwin, 8 Week. Dig. 194; Schurick v. Kollman, 50 Ind. 336 ; K- v. H-, 20 Wis. 239 ; and see, Anonymous, 60 N. Y. 262 ; McMahon v. Hallock, 15 St. Rep. 828 . Where words are not actionable per se, and do not on their face convey a slanderous imputation, there must be a preparatory statement of some extrinsic matter, a colloquim connecting it with the words spoken, and an innuendo showing the injurious sense in which they were uttered. 5 Wait’s Act. and Def. 744. It is the office of an innuendo to define the defamatory meaning which the plaintiff sets on the words; to show how they came to have that defamatory meaning; and also to show how they relate to the plaintiff, whenever that is not clear on the face of them. Odgers Slander, 100, 101.

If the defendant intended by the use of the words in question to impute want of chastity in the plaintiff, and the persons who heard the language understood it in that sense, the fact should have been alleged so as to exempt the complaint from uncertainty on demurrer. Vide, supra; Moak’s Van Santv. Pl. 428; Rundell v. Butler, 7 Barb. 260 ; Kennedy v. Gifford, 19 Wend. 296 ; Wallace v. Bennett, 1 Abb. N. C. 478 . If the sense in which the words were used was disputed or in doubt, the intention conveyed and intended to be conveyed would have gone to the jnry for determination. Hayes v. Ball, 72 N. Y. 418 ; Clapp v. Devlin, 35 N. Y. Supr. 170; Schoonovan v. Beach, 23 Week. Dig. 348; Upton v. Upton, 51 Hun, 184 ; 21 St. Rep. 559 ; Vaus v. Middlebrook, 3 St. Rep. 277 , and kindred cases.

The difficulty with the pleading here is, that standing alone, unaided by innuendo making the intention certain, the words charged must receive their ordinary import and meaning, and, so considered, they are not actionable per se, and. there is nothing to send to a j ury for determination.

For these reasons it was error to overrule the demurrer. It follows that the interlocutory judgment must be reversed and the demurrer sustained, with liberty, however, to the plaintiff to amend her complaint, on payment, within twenty days, of the costs of the demurrer and of this appeal.

Freedman, P. J., concurs,

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