Opinion
04-04-1811
Cave v. Shelor and Wife
Hay, for the appellant. Botts, for the appellee.
In an action for slander in the county court of Orange, " Ann Cave complains of John Shelor and Nancy his wife, in custody, & c. for this, to wit, that whereas the plaintiff is a virtuous woman, and of this the whole neighbourhood was well advised; the defendant Nancy, well knowing the premises, but, in the wickedness and abomination of her heart, maliciously intending to deprive the plaintiff of the only thing upon earth to her dear and interesting, a fair reputation, did, on the ___ day of ___, in the year ___, with an audible voice, in the hearing of very many respectable people, pronounce these false, slanderous and evil disposed words, to wit, that the negro man Humphrey was as great as her husband had been with her, or words to that amount, meaning they had such intercourse as man and wife have when they get children, whereby the plaintiff's reputation became blackened, and ruined by these aspersions, to her great and manifold damage, to the amount of 500 dollars." Plea, not guilty. Verdict and judgment for the plaintiff for 421. damages and costs.
An appeal being taken to the district court of Fredericksburg, the judgment was reversed, upon the ground that the declaration was not sufficient to maintain the action; whereupon the plaintiff appealed to this court.
Judgment Affirmed.
Hay, for the appellant.
Botts, for the appellee.
OPINION
Judge Roane. Judge Cabell. Judge Fleming.
Saturday, April 6th. The judges pronounced their opinions.
JUDGE ROANE. The just principle laid down by this court in the case of Hoyle v. Young, 1 Wash. (VA) 150, that words should be understood by the courts in the sense in which they would be understood by the bystanders, notwithstanding there may be a possible sense in which they may be esteemed innocent, is sufficient to overrule all the exceptions taken to the declaration in question in the appellee's statement. But there is a fatal defect in the declaration; that is, that it is not averred that the slanderous words were spoken of or concerning the plaintiff, or that they were spoken in any conversation or colloquium respecting her: nor do the words charged clearly import, in themselves, that they at all related to the plaintiff.
6 Bac. Abr. Gwill. edit. 244.
The case deduced from the declaration is, therefore, no more than this, that the defendants, well knowing the plaintiff to be a virtuous woman, and intending to deprive her of her reputation, did, in the hearing of many persons, pronounce words which may as well relate to any other person as to the plaintiff; for any thing which is averred in the declaration, or any thing deducible from the words which are specified, in themselves. We cannot sustain this declaration, therefore, unless we are prepared to say that A. may maintain an action of slander for words spoken of, or applied to, B., and which do not, in themselves, plainly and necessarily relate to A.
On this ground I am for affirming the judgment.
JUDGE CABELL. The words laid in the declaration, not being charged to have been spoken of or concerning the plaintiff, and there being nothing which can by fair construction apply them to her, I think the declaration incurably defective, and not sufficient to support the action. I am therefore for affirming the judgment of the district court. In giving this opinion, however, I wish it to be distinctly understood, that I do not mean to impugn the principle established in the case of Hoyle v. Young, 1 Wash. (VA) 150.
JUDGE FLEMING was of opinion that the declaration was incurably defective.
The judgment of the district court was, therefore, unanimously affirmed.