Summary
In Frolich v. McKiernan, 84 Cal. 177 [24 P. 114], the Supreme Court, affirming a judgment for slander, said at page 178: "[T]he expression `you want to swindle me out of my money,'... was so understood by the parties then and there present, as imputing to plaintiff an attempt to steal...."
Summary of this case from Douglas v. JanisOpinion
Department Two
Appeal from a judgment of the superior court of Santa Clara County.
COUNSEL:
The words spoken must be construed together. (Van Vactor v. Walkup , 46 Cal. 134.) When construed together, they are not actionable per se, and no special damage is alleged. The most the language used can be held to impute to the plaintiff is a desire to swindle the defendant out of his money, and that is not actionable per se. (McKee v. Ingalls, 4 Scam. 30, with cases cited in opinion and notes; Lerned v. Buffington , 3 Mass. 553; Pegram v. Styron, 1 Bail. 595; Townshend on Slander, 3d ed., sec. 134; Odgers on Slander and Libel, 1st Am. ed., p. * 60.) The plaintiff, by allegations in and by way of an innuendo, seeks to make unambiguous words actionable not otherwise shown to be so, which cannot be done. The office of an inneundo is to explain, not to extend what has gone before; the want of the colloquium cannot be supplied by an innuendo. (Townshend on Slander and Libel, 3d ed., secs. 335-337, 343, and cases cited in footnotes; Clark v. Fitch , 41 Cal. 480.)
S. A. Barker, for Appellant.
Moore & Burchard, for Respondent.
The complaint is sustained by the following authorities: Maynard v. Fireman's Fund Ins. Co ., 47 Cal. 207; Chamberlin v. Vance , 51 Cal. 75. No special damages need be alleged. (Butler v. Howes , 7 Cal. 88.)
JUDGES: McFarland, J. Sharpstein, J., and Fox, J., concurred.
OPINION
McFARLAND, Judge
Action for slander; verdict and judgment for plaintiff for $ 450; defendant appeals from the judgment upon the judgment roll alone. The only points made by the appellant relate to the sufficiency of the complaint, to which he demurred, upon the grounds that it does not state facts sufficient to constitute a cause of action, and is ambiguous, uncertain, and unintelligible.
There is supposed to be still some relic of the exaggerated nicety with which pleadings in actions of libel and slander had formerly to be constructed, and it is invoked in this case. The words alleged in the complaint to have been slanderously spoken by defendant of plaintiff are these: "You thief," "you swindler," "you scoundrel," "you want to swindle me out of my money." Of this language the ordinary man would say, with the hostess in Henry IV., "These are very bitter words"; but it is contended that, for the purposes of the law of slander, the sting of the first part of the language is removed by the qualification of the latter part. That is to say, the contention is, that defendant only said that plaintiff was a thief because he wanted to swindle defendant out of his money; and as wanting to swindle does not make a man a thief, therefore defendant did not, in law, call plaintiff a thief; and as wanting to swindle a man out of his money does not constitute a crime, therefore the alleged language is not actionable. There is, no doubt, some authority for this contention; but the complaint minutely and in detail sets forth what defendant meant by the language used, and how he meant to be understood by those in whose presence it was used, and how the latter understood it, and, moreover, that plaintiff was the secretary of a certain corporation of which defendant was president, and that the language was spoken of and concerning plaintiff as such secretary, for the purpose of injuring him in his said office. This was sufficient to make the language actionable, and it was not necessary to allege special damages. (Civ. Code, sec. 46; Butler v. Howes , 7 Cal. 87.)
We see nothing in the points that the complaint was ambiguous, uncertain, or unintelligible.
Judgment affirmed.