Rhodes v. Naglee

Morrison, C. J. Action for slander, and verdict for $3,000 damages. The first point made on appeal is, that the amended complaint is substantially defective, and the demurrer thereto-should have been sustained. The amended complaint charges, that the defendant, in the presence and hearing of plaintiff and divers persons (naming them), spoke of and concerning the-plaintiff falsely and maliciously the following words, viz: “You are a thief ; you make your money by stealing.” It is claimed on behalf of the defendant “ that there is no averment to make-definite the ambiguous terms employed. “ The words are per se actionable, and it is difficult to perceive what office an innuendo could have performed in the complaint. The averment is, that" the words “ were spoken of and concerning the plaintiff,” and that averment precludes the idea that they were spoken of and concerning any other person but the plaintiff. In such case, no innuendo or colloquium was required under the common law rules of pleading. “ Courts take judicial notice of the meaning of words and idioms in the vernacular language * * and no colloquium or innuendo is necessary to point their meaning.” (Townshend on Libel and Slander, p. 180; Odgers on Same, p. 106.) But if any doubt existed on the subject under the common law rules of pleading, such doubt is removed by section 460 of the Code of Civil Procedure, which reads as follows: “In an action, for libel or slander, it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application-to the plaintiff of the defamatory matter out of which the cause-of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish on. the trial that it was so published or spoken.”

Section 164 of the New York code is substantially the same,, and in that state the courts have in numerous cases passed on the effect of the provision. In Fry v. Bennett, 5 Sandf. 54,. [679]the court says: “ The code has made an important change in the rules of pleading in actions for libel or slander, in not requiring extrinsic facts, showing the application of the words to the plaintiff, to be stated in the complaint.” (See, also, Pike v. Van Wormer, 5 How. Pr. 171; and Bliss on Code Pleading, § 305.) To the same effect is section 2928 of the Iowa code, with the same ruling. (Clarke v. Jones, 49 Iowa, 478.) In the case of McLaughlin v. Russell, 17 Ohio, 479, the court uses the following language: “ The objection taken to the declaration is, that it does not show upon its face that the libel was upon Russell. This is a mistake. The declaration avers that the publication was concerning and against the plaintiff. * * * The words of the libel were actionable, and were alleged to have been published of the plaintiff. The particular words said to have been intended to indicate him are referred to, and averred to have meant him. This was sufficient.” We therefore repeat, that whatever the rule at common law, the complaint is good and sufficient under section 460 of the code.