Opinion
Appeal from the District Court of the Twelfth Judicial District, in the County of San Francisco.
Butler, the plaintiff below, set out in his complaint, that at the time, etc., he exercised and carried on the business of a clerk, book-keeper and accountant, and as such, was employed in various fiduciary capacities for hire and reward, and thereby acquired great gains and profits, etc. That the said defendant, on the 15th day of April, 1855, at the city of San Francisco, in a certain discourse which he then and there had, of and concerning the plaintiff, and of and concerning him in his said business and calling, as such merchant's clerk and book-keeper, as aforesaid, in the presence and hearing of divers good and worthy citizens of this State, falsely and maliciously spoke and published, etc., certain false, malicious and defamatory words in substance charging defendant with saying that Butler, while acting as his clerk, had defrauded him by abstracting his funds, etc.
The plaintiff below had a verdict for $ 5,000, on which judgment was entered. Defendant moved for a new trial, which being denied, he appealed from the judgment and the order denying a new trial.
COUNSEL:
The Court below erred in overruling the demurrer.
The words alleged in the first and second counts are not per se actionable, and no special damage is shown. Nor does it appear to whom the words were spoken, nor by whom the plaintiff was refused employment; in fact, it does not appear in what manner the plaintiff had sustained any damage whatever. This is not correct pleading according to the forms of the common law. The loss of employment is the gist of the action, so far as the first two counts allege. The damage should be specially averred with every necessary fact, showing how it accrued.
" Averment of Special Damage .--Where it is necessary to the action that special damage should be proved, or where it is intended to prove it, it should be specially averred; for no special damage can, according to the modern doctrine, be given in evidence which is not laid in the declaration.
" Thus, the averring that several customers left the plaintiff's house, is no allegation of special damage, for pleadings must specify the names of persons who left.
" And, in accordance with the same rule, if the damage consistsin the loss of marriage, the name of the individual must be given, and the plaintiff is bound by the name given, and cannot substitute another on the trial.
" Where the special damage consists in the plaintiff's having been prevented from selling his estate, it must appear how he was prevented, as that he took steps to sell, when the bidding was stopped by the defendant's acts.
" The object of the rule is that the defendant may be apprised of what he comes to answer."
Cooke on the Law of Defamation, Sec. 10, pp. 102-3; Stephen on Pl. 352; 1 Starkey on Slander. 440-1 (side page); 1 Chit. Pl. 397 (side page); Herrick v. Lapham, 10 Johns. 281.
The demurrer pointed directly to these defects, and specified them. It would seem perfectly clear that the judgment should be reversed for this error alone, unless we are to disregard all well-settled rules of pleading in such cases.
S. M. Bowman, for Appellant.
Sloan & Love, for Respondent.
No brief on file.
JUDGES: Murray, C. J., delivered the opinion of the Court. Terry, J., concurring.
OPINION
MURRAY, Judge
The declaration was sufficient to maintain an action of slander. The words are charged to have been spoken of and concerning the defendant as a clerk or tradesman, which, it is alleged in substance, was his profession, and in such cases, the rule is well established, that it is unnecessary to allege special damages.
The want of a proper statement precludes us from examining the other assignments of error.
Judgment affirmed.