Miller vs. Maxwell, 16 Wend. 9

By the Court, Nelson, Ch. J. It is manifest, from a perusal of the libel in question, that there are no expressions contained in it, so far designating the plaintiff, as to enable any one reading it to apply to him the slanderous imputations. The author or writer of the

article signed M. B., previously published, is directly referred to, and is the person whose practice as a physician and surgeon is upon the face of the publication impeached. There would seem to be no great difficulty in maintaining the action on the part of the plaintiff or any other person who could prove himself the author of that article.

The declaration, however, expressly disaffirms the authorship of the plaintiff, and seeks to sustain the action upon the assumption that the plaintiff was attacked under the assumed name of the author ; in other words, that the defendant, while assailing the professional character of the author of that article, intended the plaintiff.

It is not pretended that there is any thing in the expressions used indicating such intent; but the allegation is put forth by way of inducement in the declaration, In addition to this allegation, the history of the cases of three patients professionally visited by the plaintiff are given in the introductory part of the declaration, which it is supposed were referred to in the libel, followed by the usual colloquium and innuendoes.

Whether these averments are sufficient to make the publication in question a libel upon the plaintiff, which does not appear to be one on the face of it, is a material point in the case. The doctrine involved in this point is most lucidly and satisfactorily stated by Chief Justice De Grey who delivered the unanimous opinion of all the judges in the house of lords, in the case of The King v. Horne, Cowper, 682; his opinion in that case, has been frequently referred to as of the highest authority ever since.

That was an information against the defendant for publishing a libel; and the question presented was, whether the writing described in the information was sufficiently stated to make it a libel upon the government. The chief justice, after commenting upon the degree of certainty required, observed, “It may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel.

In such a case, the court wants no circumstances to make it clearer than it is of itself; but if the terms of the writing are general or ironical, or spoken by way of allusion or reference, although every man who reads such a writing may put the same construction upon it, it is by understanding something not expressed in direct words, and it being a matter of crime, and the party liable to be punished for it, there wants something more.

It ought to receive a judicial sense whether the application is just, and the fact or nature of the fact on which that depends is to be determined by a jury.” This exposition of the law was referred to and approved in the case of Van Vechten v. Hopkins, 5 Johns. R. 221. The same principles are perhaps more fully stated by Baron Alexander, in delivering the opinion of the judges in the case of Hall v. Blandy, 1 Young & Jervis, 480, in the court of exchequer.

He observes, where that which is termed a libel does not necessarily upon the face of it impute one, it is required to connect it with certain facts by way of inducement, in order that so explained it may amount to a libel, and that there may be sufficient certainty, that what is therein stated relates to the plaintiff in the action. If the plaintiff is referred to by name, that is sufficient. The same learned judge goes on; “ It may be necessary to state in the introductory part of the declaration, 1. The extrinsic circumstances and facts by which the words become actionable ; 2.

That the words relate to these facts, by laying a colloquium ; and 3. Connecting averments, called innuendoes, by which such parts of the publication as want explanation are referred to the introductory facts.

By this processs, the extrinsic facts incorporated as it were into the defendant’s publication, become an integral part of the plaintiff’s case, and the whole forms one entire slanderous charge upon the face of the record.” From these rules of pleading, as well as from the nature of the action itself, it is obvious that the publication must describe the plaintiff with sufficient certainty to enable his personal acquaintances, on reading it, to apply to him the slanderous imputations ; if not, however gross the charges, it is no libel upon him—-no more than a libel published in a foreign language, which is not actionable unless it is averred that the hearers understood it.

Cro. El. 496,865. 2 Saund. Pl. & Ev. 795. When the words are obscure and equivocal, and do not per se import slanderous imputations, or point them to the plaintiff, and therefore require expía- ■ nation by reference to extrinsic matters, such explanation is not for the purpose of showing the intent of the defendant to calumniate the plaintiff, because that alone would do him no harm, but to show that he had accomplished such intent; that the words as used and understood by the hearers fixed upon him the charges.

Then, though he is not expressly designated (which of itself would be sufficient) with the aid of the extrinsic matter, the libel becomes certain as to the individual intended, and its publication equally injurious to his character. In the language of Baron Alexander, the extrinsic facts become incorporated into the defendant’s publication, are an integral part of the plaintiff’s case and the whole forms one entire slanderous charge. In the case of Goldstein v.

Foss and another, 4 Bing. 489, the libel consisted of a letter addressed to the members of a certain society for the protection of trade against sWindi lérs and sharpers by their secretary, in which'-the plaintiff was designated as one who was reported'- to the society as improper to become a member: innuendo-, that the plaintiff was a swindler and sharper.

After verdict' for'the plaintiff, the judgment was arrested; upon the ground that there were' not facts enough upon'the record to show that the construction put upon the libellous words by the innuendo was the sense in Which they were employed by the defendant. The' words did not import that the plaintiff was' a swindler, and an allegation of some fact was required to prove they were used in that sense. If, says-Best, Ch. J.,the'declaration! had gone on to aver that it was the custom'of the society' to designate swindlers by the term improper persons, the' innuendo might have been sufficient.

The- learned chief justice no doubt intended a custom- of the society known to-' the public—at all events, lmown to the members of the soci-ety ;• and then such persons reading the letter' would understand the term; and as imputing the character given by the' innuendo. This part of the case may be further illustrated by the-' libel under consideration-. After referring tti the article,M.

B., the writer, says “At first'we supposed it Was written by a celebrated surgeon of whiskey memory; but on our second- perusal, we changed our opinion, and concluded it was-from the pen of a noted steam doctor.” The plaintiff has set out, by way of" innuendo, that he was intended by the terms surgeonof whiskey memory, and steam doctor'. Now, an innuendo may apply what is already expressed; but cannot add to, enlarge or change the sense of the previous words. 1 Saund. 243, n. 2 Salk. 513. 9 East, 93. 2 Saund. Pl. and Ev. 799. 5 Johns. R. 221. De Grey, Ch. J. in The King v.

Horne, p. 684, says it is only used as-a word of explanation ; ■ it cannot extend the sense of the■ ez^ pressions beyond their own meaning, unless something is put upon the record for it to explain. In this case, I am unable to find any thing upon the record, any introductory matter, authorising or warranting the inference drawn, that the words above used meant the plaintiff. It will not be pretended that he is designated by their common and natural meaning; and if not, for aught that appears in the declaration, they may apply to any one else as well as to him.

This plain and natural meaning cannot be varied by the innuendo, unless there is some previous fact or circumstance alleged which, in connection with the terms, fix the meaning imputed to them.

If, in the introductory part of the declaration, it had been averred that the plaintiff was known in the community by the names of the “ surgeon of whiskey memory,” or “ steam doctor,” or that the defendant had been in the habit of giving him these appellations in his neighborhood or among his associates, by reason of which he was thus known, then the innuendo in connection with such averments would be warranted; and supposing the facts to be proved, would establish a case showing the plaintiff libelled under those names.

When referred to by these appellations, he would be as well known by his acquaintances as if his proper name had been used ; and if libelled under either, or both of them, they would readily understand the person intended. The true question in cases of this kind was put to the jury by Chief Justice Abbot, in Bourke v. Warren, 2 Carr. & Payn, 307. “ The question for your consideration,” he said, “ is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant.

It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he/is the person meant.” See also Fisher v. Clement, 10 Barn. & Cres. 472. From the foregoing view of the law, it is manifest the introductory averment in the first count, that the defendant falsely stated and declared that the plaintiff was the author of the

article signed M. B. cannot help out the want of certainty in the libel as to the person intended. It may show that the defendant had the plaintiff in view when he wrote it, and that he intended to libel him; but it by no means shows that he carried into complete effect such intent. The intent of the defendant or of the publication is material only when connected with the tendency of the libel, and that must be such as clearly to import injurious imputations upon the character of the plaintiff. 10 Barn. & Cres. 119. I do not say but that if the defendant had given out that the plaintiff was the author of the

article signed M. B.„ and that fact was thus known and understood in the community, and the defendant afterwards libelled the plaintiff under that appellation, the plaintiff might have so declared as to maintain the action. No such case however is presented, and an opinion is not called for on the point. Again; the attempt to show that the plaintiff was the person intended by the libel, by means of the history of the cases of the three patients, set forth as introductory matter in the declaration, is equally as unsatisfactory as the one just examined.

I am not sure these cases were given for the purpose of identifying the plaintiff as the person calumniated, but rather with a view of proving the publication itself libellous. The plaintiff, however, has a right to use them in either or both aspects of the case.

There is nothing in this introductory matter, together with the innuendoes, tending to show that the person of either of these patients was described in the libel, or by which any one reading it could understand they were alluded to—no name, locality, or circumstance of the remotest bearing, affording a clue to the individuals who had suffered under “ wrong notions concerning their diseases.” The certainty with which they are supposed to be designated, turns exclusively upon the alleged identity of the diseases, or ailments. The cases mentioned in the publication are, 1.

An injured arm, a dislocation of the elbow left unreduced so long that the use of the joint was lost; 2. A malignant disease of the eye-lid, which might at first have been removed by a trifling operation, but was left till it was feared the whole eye must be extirpated; 3. A dislocation of the shoulder, by which the patient lost his life. Satterly, a patient of the plaintiff who 'had an injured arm, supposed to be referred to as one of the cases, does not appear to have had a dislocation of the elbow nor a useless joint. The only identity in the two cases is, that -each had an injured arm.

The rest of the description in the libel is not common to both, and therefore tends to disprove the identity. In respect to Pier-son, who had the dislocated shoulder, he was not the patient of the plaintiff, but of a Doctor Cummings; and as to Mrs. Edwards, it does not appear that she was the plaintiff’s patient, or that the plaintiff had been called to examine, professionally, the blemish upon her eye-lid.

Now the plaintiff supposes he has been libelled in his professional character in respect to his attendance and services in these three cases; and he asks the court to infer this from the resemblance between them and the cases mentioned in the publication. But in order to lay a plausible foundation for this conclusion, it would seem that the plaintiff should show at least they were his patients, and" that he was responsible for the prescriptions and treatment.

What good reason has he to suspect that he was alluded to, professionally, through, the medium of these cases, upon reading the publication, if in -fact cases of patients are, described who were not under his care ? I do not, however, deem it important to pursue this course of observation, because if the cases as described in the introductory part of the declaration and the libel were identical, they would fall far short of pointing out the plaintiff with the certainty required, or fixing upon the publication a defamatory character.

Hundreds of physicians and surgeons may have had cases, in the course of their professional services, corresponding as closely with those described in the libel as the above. A dislocated elbow, or shoulder, or disease of the eye-lid, are not of uncommon occurrence. So long as the identity rests entirely in the description of the cases, without in some way designating the individual patient, it. will be jllusory and inconclusive. Judge Van Ness, in delivering the opinion of the court in Van Vechten v.

Hopkins, concedes that cases exist in which the words in themselves were held to b.e so vague and uncertain as that it could not be intended they ■were spoken of any person, and that for that reason they could not be made actionable by an averment. One of the oases referred to may be found in Cro. Eliz. 496, where the charge was, “ my enemy (meaning the plaintiff) is an extortioner.” Though the words were alleged to have been spoken of the plaintiff, the ■ court say it is not material, for it could not appear so to those that heard them.

Sir John Bourne’s case is there referred'to, where three persons were witnesses against'him, and he said “ One of you is perjured,” and it was adjudged no action could be sustained. In James v. Ruttich, 4 Rep. 17, it was resolved two things were requisite in every action of slander-: 1. That the person who is scandalized is certain-; -2. That the scandal is apparent by the words themselves. Several examples of uncertainty are ‘then given. See also 1 Viner, 507.

Judge Van Ness distinguished between these cases and the one then under consideration, where the words in themselves amounted to a libellous charge upon some particular person, but where that person was so ambiguously described, as that without the aid of extrinsic facts, his identity could not be ascertained, but where by the introduction of proper averments and a colloquium, the words might, notwithstanding, be rendered sufficiently certain to -maintain an action. We have before made all the observations on this part of the case deemed necessary. See also the opinion of Mr.

Justice Spencer in ;the same case, p. 228. The above view of this case, though confined chiefly to the first count, is equally applicable to the second, third and seventh counts. The eighth, ninth and tenth counts are somewhat differently constructed and require a brief consideration. In these counts the plaintiff does not insist that he was alluded to as the author of the

article signed M.- B.; but concedes that a steam doctor was the author, agreeably to the charge in the libel. He however insists, that he was alluded to by the expression surgeon of whiskey memory, and that he was the physician and surgeon alluded to and intended by the defendant, and that his three cases were those described as having fallen under the observation of the author of the

article signed M. B.; by -reason of all which he was defamed in his professional character of physician and surgeon. Now, as before observed in the examination of the other class of counts, there is nothing upon the record authorizing the inference, that the plaintiff was alluded to by the expression surgeon of whiskey memory. Such, is not the natural meaning of the terms, and the innuendo cannot enlarge or alter it, unless there is some matter set forth showing that such expressions are understood in the community, or by the plaintiff’s acquaintances, to refer to him.

The pleader in the innuendo avers, that the defendant meant and intended by this expression to have it understood that the plaintiff was guilty of mal-practice, in the aforesaid case of Pierson, by administering whiskey to him, and that the memory of such mal-practice rested in the minds of the citizens of the neighborhood. But we find nothing in the libel or intrinsic facts set forth to warrant this conclusion ; nothing by which it appears that the neighborhood could understand the meaning thus imputed to the expressions.

It is not even averred, in the introductory part of the declaration, that whiskey was administered by the plaintiff to Pierson; but on the contrary, that it was done in his absence and against his advice; or what is more material, it is not averred that he had acquired in the neighborhood the cognomen here given. How could the readers or hearers of the libel understand the plaintiff was alluded to, if no such appellation had attached to him, anti it was given in"the libel for the first time ?

The error of the pleader is, in supposing it to be enough to entitle the plaintiff to maintain the action, that the defendant intended to libel him. We have before endeavored to show that this is a mistake. The tendency of the libel must be such that persons reading it will receive an impression injurious to his character; whatever may be the intent, if such is not the effect of the publication, it is not libellous. These observations are equally applicable to the innuendo that the plaintiff was the surgeon and physician alluded to and intended by the defendant in the libel.

The only extrinsic facts set forth which can be supposed to warrant this meaning, are the cases of the three patients described in the introductory part of the first count. Physician and surgeon, used in the libel, are general terms, and of themselves have no more allusion to the plaintiff than to any other member of the profession. Something more, therefore, is requisite to designate him ; the history of these three patients is relied on, and that they are those particularly described in the publication. I have already made all the remarks on this point which I think necessary.

Upon the whole, the great and radical defect in all these counts is, that assuming every fact stated in them to be proved, the plaintiff does not show that he has been libelled. He is not alluded to by name, and the extrinsic facts and circumstances stated to warrant the conclusion that he was the person referred to under the terms surgeon of whiskey memory, steam doctor, physician and surgeon, or author of the

article M. B., are wholly insufficient. With the aid of all this introductory matter, neither count presents a case showing to the court that any person reading the libel could thus understand the expressions. Without this, no injurious impression could be made upon his mind respecting the character of the plaintiff, professional or otherwise ; the publication cannot, therefore, be a libel upon him. The special pleas are defective, and constitute no legal defence to the several counts to which they are put in. The plaintiff did not seek to maintain the action in either of them upon the ground that he was the author of the

article signed M. B. ; on the contrary, each count, either expressly or impliedly concedes that he was not. It was no answer, therefore, to say that he was not the author. The pleas presented no issue for trial, and left undefended the gravamen of the counts. Under the rule laid down in Wheeler v. Curtis, 11 Wendell, 653, it was urged that the defendant here having pleaded the general issue to all the counts, could not go back and object to the declaration. Such an opinion was expressed by me, though it was not material to the decision of that case; the principle, however, has since been followed.

It is well settled that a defendant cannot both plead and demur to the same count. The one may be a denial of the facts, the other is an admission of them, and a question of law is raised and referred to the court whether the plaintiff1 has shown ^ cause of action.

The one issue is determined by a jury, and the other by the court.- Now it seems to be-inconsistent for the court to maintain the above rule, and at-the same time permit the defendant indirectly to evade it.This he certainly may do, under- the rule contended for, by first pleading the general issue, and then a defective special' plea to - the same count; for on a demurrer to the plea, the defendant may- go back- to the count' and avail himself of-every objection that could be made to it1 on a general demurrer.

He thus has the benefit of the general'issue, and of a general demurrer to the same count—a violation of one-of the first rules of pleading.. I am aware of the reason-given for this- indirect use of the demurrer to the plea,namely, that-it is convenient, and a saving, of time and ex-' pense,-thus summarily to test- the goodness-of the count;; otherwise the defendant, after trial, would be driven to a-writ of error, or motion' in arrest of judgment.

Undoubtedly there is much force in this - consideration, and if the' rule should be confined to-such cases and such only, though' inconsistent with a fundamental rule of pleading, it would be unobjectionable; but when extended to all cases- of substantial defects in the pleading which may be reached by' general demurrer, a large class are embraced that are cured' by the verdict, both at common law and by the statute of amendments.

When there is upon the record a plea to the-count raising an issue to be tried by the jury, and the count' is sufficient to sustain the verdict for the plaintiff after judg-ment, there is not the slightest reason of convenience or justice, for permitting it to be thus indirectly attacked. If the party wished to avail himself of these defects; he should have demurred- in the first instance. If he chooses to plead, good sense and fair practice require no objection should be-permitted to the declaration which a verdict would cure.

Convenience and economy of time and expense may, and T think will, justify the departure from the settled rule, that a plea and demurer cannot be put in to the same count, by this indirect practice, in- the case of defects- not cured by the verdict. The rule therefore, as stated in Wheeler v. Curtis, should have been accompanied with this qualifiCation.