McKinney v. Roberts

SEARLS, C. Plaintiffs are husband and wife, and this is an action to recover damages for slanderous words alleged to have been spoken of and concerning the latter by defendant. A demurrer to the complaint was sustained, and, plaintiffs declining to amend, final judgment was rendered in favor of defendant for one hundred dollars counsel fees, as provided by section 7 of an act concerning actions for libel and slander, approved March 23, 1872, and for costs in the sum of seven dollars and seventy-five cents. A memorandum of costs was made out, served and filed, as required by section 1033 of the Code of Civil Procedure, but which did not include the one hundred dollars allowed by the court as a counsel fee.

Appellants claim that the court erred, first, in sustaining the demurrer to the complaint; and, second, in including the sum of one hundred dollars as counsel fees in the judgment, the same not having been mentioned in the memorandum of costs as filed.

The language complained of is set forth in the complaint as follows;

“ (2) That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the [533]defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, to wit: £If you wish to see or talk to any woman go over the river and talk to your paramour, Mrs. W. McKinney. By God, sir, she is over at my house visiting to-day. ’

££ (3) That said words were spoken concerning the plaintiff Susan McKinney.

££ (4) That said words were false, except that the said plaintiff Susan McKinney was at the house of said defendant on said day visiting.”

The allegation of the complaint is:

“That on the first day of March, 1883, as the plaintiffs are informed and believe, at the county of Stanislaus, the defendant, addressing William Walker, spoke, in the presence of said William Walker and George M. Dewel, the following words, to wit.”

“Plaintiffs are informed and believe defendant spoke certain words.” Is this a sufficient averment of the speaking? Plaintiffs might have been informed, and might have believed, the defendant to have spoken the words as charged, and yet it may not have been true. Would proof that they were so informed, and that they thus believed, be sufficient to sustain an action? We think not. If denied, the proofs should show the words to have been spoken by the defendant, or the action must fail. No amount of proofs that plaintiffs were informed defendant had thus spoken, and that they believed it, would suffice to establish the fact. The allegata and probata should concur. The averments of the complaint should be as precise and specific as the proofs are required to be. The language used does not exclude the hypothesis that defendant did not speak the words. It may all be true, and' the defendant be entirely innocent. Had plaintiffs stated that, upon information and belief, they averred defendant spoke the words in question, quite a different proposition would be presented. Suppose defendant had failed to answer, what would have been the effect of admitting the allegations of the complaint ? Why, simply that plaintiffs were so informed, and not that it was true, but that they believed it to be true. We think the defect goes to the sufficiency of the facts stated, and not to the mode of stating them, and therefore that it can be reached by a general demurrer, and that for this reason the demurrer was properly sustained.