Clugston v. Garretson

Slander—Actionable Words—Charge of Arson—Setting Fire to Yard.—Words charging the plaintiff with having set fire to a yard, in which stood the warehouse of a wood and coal company, charge the crime of arson, and are actionable per se.

Id.—Yard Appurtenant to Warehouse—“Building.”—The yard in which the warehouse of the wood and coal company is alleged to have been set on fire should he regarded prima facie, as “appurtenant to, or connected with,” the warehouse, and, therefore, within the definition of the word “building” given in section 448 of the Penal Code, the setting on fire of which is declared to be arson.

Id.—Charge of Setting Fire to Warehouse—Pleading—Innuendo.— Where the complaint alleges that a warehouse in a yard was set on fire, and charges the defendant with having said in the presence of others that “Clugston set the fire,” these words import that Clugston set fire to the warehouse, and must have been so understood by those to whom the words were spoken, and no innuendo is necessary to show the meaning.

Id.—Consistency of Distinct Charges.—The fact that the defendant had said to others at a previous date that the plaintiff set fire to the yard is not inconsistent with the charge of setting fire to the warehouse, which was in the yard.

Id.—Pleading—Destruction of Warehouse.—It is not necessary upon a charge of slander, falsely accusing the plaintiff of setting fire to a warehouse, to allege that the warehouse was consumed or destroyed by the fire.

Id.—Pleading.—Where distinct causes of action, upon a charge of slander, are not separately stated, or not stated with sufficient certainty, these defects are waived by a general demurrer.

Id.—Truth of Charge—Mitigating Circumstances—Burden of Proof. Where the words spoken are actionable per se, and the speaking of them is not denied, but the answer alleges that they were true, and sets up mitigating circumstances, no proof is required on the part of the plaintiff to make out his case; but the law presumes that the words were both false and malicious, and the burden of proving their truth, or any facts tending to mitigate the damages is on the defendant. .

Id.—Belief of Truth of Charge—Absence of Malice—Measure of Damages. —Where the words spoken were untrue, but were spoken without actual malice on the part of the defendant, but in good faith, believing them to be true, the verdict of the jury should be confined to the actual damage sustained by the plaintiff.