(February Term, 1893.)
Slander of Wife — Action by Husband — Dismissal of Action.
An action by a husband for slander of his wife, the wife not being a party and the complaint alleging no special damage to the husband, will be dismissed by this Court on motion of the defendant, or ex mero motu, for failure of the complaint to state a cause of action.
ACTION brought to Fall Term, 1892, of VANCE, by J. S. Harper against R. R. Pinkston, J. A. Bridges, W. E. Gary, and W. L. Cuninggim for alleged slander of plaintiff's wife.
(296) H. T. Watkins, Pittman Shaw and Edwards Wortham for plaintiff.
R. O. Burton and W. R. Henry for defendants.
AVERY, J., concurring. (Discussion of Lord Denman's Act, section 580 of The Code, bill of discovery, matters of privileges, etc.)
The wife, who alone is charged to have been slandered, is not a party to the action. There being no special damage alleged as to the husband, who is the sole plaintiff, the complaint fails to state a cause of action. Newell on Defamation, 365, 1849; Odgers Slander and Libel, 313, 346; Folkard's Starkie on Slander, 332; The Code, sec. 177. The words were not used in regard to the husband, and his reputation certainly has not been assailed. He must aver special damage. The action should, therefore, be dismissed on the motion made here by the defendant. Indeed, it might have been done ex mero motu by this Court. Rule 27 of Supreme Court; Hagins v. R. R., 106 N.C. 537; Gordon v. Sanderson, 83 N.C. 1.
This makes it unnecessary to consider the interesting questions raised on the argument. There is no case of which a court can take cognizance.