Opinion
August Term, 1850.
1. In an action of slander, when the charge is made by using a cant phrase or a nickname, or when advantage is taken of a fact, known to the person spoken to, in order to convey a meaning which they understood by connecting the words (of themselves unmeaning) with such fact, the plaintiff is obliged to make an averment of the meaning of such cant phrases or nickname, or of the existence of such collateral fact, for the purpose of giving point to the words and of showing that the defendant meant to make the charge complained of; and, in such cases, there must also be an averment that the words were so understood by the persons to whom they were addressed.
2. These averments are traversable and must be proven, and differ entirely from what are called innuendoes, which need no proof.
APPEAL from the Superior Court of Law of YANCEY, at a Special Term, in July, 1850, Battle, J., presiding.
N.W. Woodfin for plaintiff.
B. S. Gaither for defendant.
This was an action on the case for slander. The words charged in the declaration were that the defendant, in speaking of the plaintiff on a certain occasion, said, if they did not mind, "he would make the tray of biscuit roar before Saturday night," intending thereby to impute to the plaintiff the crime of having stolen biscuit.
On the trial a witness was called who testified that on a certain occasion the defendant and the plaintiff's father were quarreling about the running of a fence, and that, afterwards, as the plaintiff passed near where the defendant, the witness (354) and one or two other persons were standing, the defendant said that, if they did not mind, he would make the tray of biscuit roar before Saturday night. The counsel for the plaintiff then proposed to ask the witness if he did not understand the defendant to allude to the plaintiff and to intend to impute to her the charge of stealing biscuit, a report to that effect having been circulated in the neighborhood. The defendant's counsel objected to the question, so far as it related to the identifying the plaintiff as the person intended to be charged, and to that extent the court ruled it to be improper. The counsel for the plaintiff then asked the witness whether he had not told the defendant that he understood him to allude to the plaintiff and charge her with stealing biscuit, to which he answered that he did. There was other evidence in the case, which it is unnecessary to state. The defendant had a verdict, and the plaintiff moved for a new trial because of the rejection of the testimony in relation to the understanding of the witness as to the plaintiff being the person intended to be charged by the defendant.
The motion was overruled and a judgment given, from which an appeal was taken.
When a charge is made by using a cant phrase or words having a local meaning, or a nickname, or when advantage is taken of a fact known to the person spoken to, in order to convey a meaning which they understood by connecting the words (of themselves unmeaning) with such fact, the plaintiff is obliged to make an averment of the meaning of such cant phrases or nickname, or of the existence of such collateral fact, for the purpose of giving point to the words and of showing that the defendant meant to make the charge complained of, and, in such cases, there must also be an averment that the words were so understood by the persons to whom they were addressed, for, otherwise, they are without point and harmless.
(355) These averments are traversable and must be proven, and differ entirely from what are called innuendoes, which need no proof, and in fact prove themselves, their office being merely to point out the meaning and give a greater degree of certainty than is usual in conversation or ordinary writing. Hamilton v. Smith, 19 N.C. 274; Watts v. Greenlee, 13 N.C. 115. When the words in their ordinary signification designate the person and the offense, there is no necessity for an averment, and but little use in an innuendo. But when the words do not designate the person or the offense, an innuendo will not suffice, unless it be supported by the averment of some fact. For instance, if the words are, "the queen has stolen biscuit," a simple innuendo, meaning the plaintiff, will not answer, and it is not necessary to support it by averment that it was known to the persons who heard the words, and that the plaintiff was called by that term, and that they understood the defendant to mean her; for if the meaning was not understood, the words could do her no harm. So, if the offense consist in words of themselves unmeaning, there must be an averment of some fact to support the innuendo and give them a meaning. The jury must not only be satisfied that the defendant's meaning was as charged, but that he was so understood by the persons who heard him, which latter part can only be established by their oath. Woolworth v. Meadows, 5 East, 46. It is the same as if the charge was made in the Chinese or any other foreign tongue (which the hearers are not presumed to understand), and in such case there must be an averment, not only that the defendant meant to make the charge, but that he was so understood by those who heard him.
In this case the words are, "they had better mind, or I will make the tray of biscuit roar before Saturday night." These words are unmeaning, and point neither to the person nor the offense. His Honor was of opinion that it was proper to ask the witness what he understood the words to mean, (356) so far as they had relation to the offense, but held that it was unnecessary so far as they had relation to the person to whom the witness understood the defendant to attribute it. To this the plaintiff excepts. We are at a loss to perceive the ground of this distinction; the words are unmeaning in both particulars; both equally require explanation. In fact, it is impossible to explain the one without at the same time giving an explanation of the other. The declaration contains an averment that there had been a report, which was known to the persons to whom the defendant spoke, that the plaintiff had stolen a tray of biscuit. The defendant and the father of the plaintiff had just quarreled, and the plaintiff was passing near the defendant and several other persons when he used the words — meaning to charge the plaintiff with stealing biscuit, and that he was so understood by the persons who heard him. The witness was allowed to say that by the words "tray of biscuit roar" he understood the defendant to mean that a tray of biscuit had been stolen and to threaten a prosecution, and he understood the defendant to allude to a report which he had heard about stealing biscuit. This was only telling half of the tale; why exclude the other? The report was that the plaintiff had stolen biscuits. If from this and the other circumstances annexed, the witness was able to understand the defendant's meaning as to the offense, he was obliged also to understand it as to the person, and there was the same necessity and the same reason for permitting him to give his understanding in reference to one as to the other. The rules of evidence are designed to enable plaintiffs in such actions to get at the truth, and to prevent defendants from stabbing in the dark.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Sasser v. Rouse, 35 N.C. 144; Sowers v. Sowers, 87 N.C. 306.