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brought Into public scandal, infamy

and disgrace with and amongst his 24. Divivier v. French, 104 Fed. 278, 43 C.C.A. 529

neighbors, &c, (1900).

198

OFFENSIVE PLEADINGS



Ch. S

clearly apply to the plaintiff, a colloquium is not necessary. In Milligan v. Thorn,25 the plaintiff complained that he had been slan­dered, but he was not named in the slander­ous words, The plaintiff therefore was re­quired to include a colloquium, that a con­versation was had of and concerning him. Without this nothing was expressed to which the innuendo could refer, when the plaintiff stated that he was intended.2°
(C) The Publication of the Scandal Itself.

—As the basis of actions for libel and slander is damages for the injury to the character of the plaintiff in the opinion of others, and that can only arise where the words uttered or written are published to third persons, the declaration must allege publication of the slanderous or libelous matter. Thus, for


25. 6 Wend. (N.Y.) 412 (1581).
~6. Where Defamatory language Is of a clear import and on its face applies to the plaintiff, no colloqul­urn or setting is necessary in the Declaration. Choc­taw Coal & Mining Co. v. LulIch, 204 Ala. 533, 56 South. 383, 11 ALa. 358; 17 R.C.L. 394. “Thus, if the imputation be that the plaintiff was ‘fore­sworn,’ this not being of itself actionable, because it does not necessarily impute the offense of perjury, it must be specifically alleged, by way of Induce­ment, that there had been a Judicial Proceeding, in which the plaintiff was a witness and gave evidence, and that the defendant when speaking the words, referred to such matter in using tho term ‘fore­sworn,’ and Intended to Impute that the plaintiff bad been guilty of the crime of perjury.” I Chitty, Pleading, 415. “Where the libelous matter can be collected from the words themselves, there need be no averment as to circumstances.” Thus, if the Declaration be, “lie perjured himself,” the charge of crime appears, and it Is for the defendant to plead its truth If he can. A Declaration was sus­tained by the King’s Beuch in 1661 as against a Mo­tion in Arrest of Judgment which chnrged the de­fendant with saying of plaintiff, an attorney, “lie has no more Judgment in the Law than Mastcr Cheyny’s bull,” although it was urged that the Dcc’ laration was defective In not alleging that Mr. Chey­ny bad a bull, ned, non allocatur. Baker v Morphew, 2 Keble, 202, 84 Eng.Rep. 126. A charge, ironically made, that the plaintiff was an ‘ton­cut lawyer,” would have required more explana­tion, See Keigwlu, Precedents of PleadIng, 285, 295 (WashIngton, I). C. 1928).

example, in Waistel v. Holman,2where the declaration averred that the defendant com­posed, wrote and delivered to the plaintiff a certain libel, addressed and directed to the plaintiff, a Demurrer was sustained, as the averment failed t0 show a publication of the libel; sending a sealed letter to the plaintiff was not a publication.


(D) The Innuendo.—This part of the Declaration followed the colloquium, and its object was to explain the defendant’s mean­ing by reference to the previous statements in the inducement and colloquium; but an in­nuendo cannot enlarge the meaning shown by the inducement in which the surrounding conditions are set forth.28 In Roella v. Fol­low,29 the colloquium stated that “He” (meaning the plaintiff) “took a false oath,” but the Court held that the Declaration was inadequate in that the words were not in themselves actionable, and require an “innu­endo which is necessary, in such cases, to ex­plain the defendant’s meaning by reference to previous matter.”
(E) The Consequent Dantage&—This was merely a conclusion of the plaintiff that he had sustained damages to a certain amount, and therefore, he brings his suit.
Over and above these technical parts of the Declaration, there were other require­ments, Odgers,3° in his famous work on Libel
27’ 2 I-TaIl (N.Y.) 103 (1829).
2L Innuendoes ate not sufficient to supply the lack of Inducement and Colloquium or ettend the mean­ing of words beyond their natural import or sense. MacLaughlin v, Fisher, 136 Ill. 111, 116, 24 N.E. 60 Erettun v, Anthony, 103 Mass, 37 (1869); Whittier, Cases on Common Law Pleading, 186, 137 Note:

Emmett v. Phelps, 97 Or. 242, 191 Pac. 502, 11 AL.R. 663,

See also, Triggs sc Sun Printing and Publishing Asso­ciation, 179 N.Y. 144, 71 N.E. 739, 66 L.R.& 612, 103

.Am.St.Rep, 841, 1 AnnCas. 326 (1904), reversing 91

AppDiv. 259, 88 N.tSupp. 486 (1904).
29. 7 Blaekf. (md.) 377 (1845).
3°. C. V, 186, 137 (5th ed. Chicago, 1900). See, also, Newell, Slander and Libel, c. VII, 733 (4th ed. Clii’

See. 93


TRESPASS ON TIlE CASE

199

and Slander, states: “So, too, many other allegations were required describing the lo­cality, the relationship between the various persons mentioned, and all the surrounding circumstances necessary to fully understand the defendant’s words. And these matters could not properly be proved at the trial unless they were set out on the record; if they were not, and the plaintiff had a verdict, the court would subsequently arrest judg­ment on the ground that it did not appear clearly on the face of the record that the words were actionable. And this technicality was carried to an absurd extent. Thus, where the defendant said, ‘Thou art a mur­derer, for thou art the fellow that dklst kill Mr. Sydnam’s man,’ the court of Exchequer Chamber, on error brought, arrested judg­ment, because there was no averment that any man of Mr. Sydnam’s had in fact been kille&31 Had the words been ‘and thou art’, instead of ‘for thou art,’ the plaintiff would probably have been allowed to recover, Again, in Ball v. Roane (1598) Cro.Eliz, 308, the words were: ‘There was never a robbery committed within forty miles of Wellingborough but thou hadst thy part in it.’ After a verdict for the plaintiff, the court arrested judgment, ‘because it was not averred there was any robbery committed within forty miles, etc., for otherwise it is no slander.’ So in Foster v. Browning (1625) Cro.Jac. 688, where the words were, ‘Thou art as arrant a thief as any is in England,’ the court arrested judgment ‘because the plaintiff had not averred that there was any thief in England.’ But the climax was reach­ed in a case cited in Dacy v. Clinch (1661) 1 Sid. 53, where the defendant had said to the plaintiff, ‘As sure as God governs the world, or Icing James this kingdom, you are a thief,’ After verdict for the plaintiff, the defendant moved in arrest of judgment, on


cago, 1724); Kcigwin, Precedents in Pleading, 285 ~Washlngton, I). C. 1928).
31. Earrons v, Ball, Cro.Jac, 331, 79 Eng.Eep, 282.

the ground that there was no averment on the record that God did govern the world, or King James this kingdom. But here the Court drew the line, and held that ‘these things were so apparent’ that neither of them need be averred.”
(F) The Defamatory Words Themselves Must be Set Out Verbcttim.—At Common Law, the general rule was that in suing on written instruments, the contract could be set out verbatim or according to its legal effect. As setting forth a writing verbatim often resulted in a motion for nonsuit on the ground of variance between allegation and proof, usually the writing was set out according to its legal effect. But in libel and slander cases the words had to be alleged verbatim, or in haec verba.32 As we have stated earlier, this was due to the civil law origin of libel and slander, both of which were regarded as innovations upon the Com­mon Law, and to the fact that the criminal and Appellate Courts, on review, could not determine whether the lower courts had properly determined whether the words ut­tered or written, as a matter of law, were slanderous or libelous. The defendant, of course, was also entitled to know the precise charge against him.33
32. Webster ‘cc flolmes, 82 N.J.L. 55, 40 A. 778 (18985. See, also, Wormouth V. Cramer, S wend. (N.Y.) 394 (1829), where the words uttered were in the German language, but were set forth in the Declaration in the English language, with the rcsult that the plain­tiff was Nonsuited.
Proof of similar or equivalent words is not admissi­ble. Wallace ‘cc Dixon, 82 Dl. 202 (1876); Schultz ‘cc Short, 201 ill.App. 74 (19Th). But a slight vari­ance Is not fatal; i. e., “You are a lIar” is support­ed by proof that “You are a damned liar.” 25 Cyc.

472.
33. “The gravamen of an action for libel is not in­jury to the plaintiffs feelings, but damage to his reputation in the eyes of others. It Is not sufficient, therefore, that the plaintIff should understand him­self to be referred to in the article. It is necessary to constitute libel that others than the plaintiff should he in a position to understand that the plain­tiff Is the person referred to.” Duvivier v, French, 104 Fed. 278, 43 C.C.A. 529 (1900).

200

OFFENSIVE PLEADINGS



Ch. 8

(G) The Technical Common-Law kules of Pleading in Libel and Slander Modified.— Under modern practice the technicalities governing pleading in libel and slander eases

have been largely abandoned. This tendency

first took on substantial form in England when the Common Law Procedure Act of 1852 ~ provided:


“In Actions of libel and slander, the plaintiff shall be at liberty to aver that the words or matter cornplainedof were used in a defama­tory sense, specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander; and where the words or matter set forth, with or without the alleged meaning, show a cause of action, the Declaration shall be sufficient.”
This section was adopted into the New Jersey statutes in 1855.~~
The purpose of the above provision, as ex­pounded by the courts of England and New Jersey, was to afford the plaintiff the right to set out in his Declaration the words com­plained of, and to place upon those words, by innuendo or specified defamatory sense, any construction he may see fit to attribute to them, without showing, by means of a colloquium, or other explanatory matter, how the words contained a defamatory charge.35 “The effect of this change,” according to Lanning, 3., in Allen v. Oppenheimer,37 “in the law of pleading, as to this class of cases, is that if the words complained of are action­able per se, and the plaintiff by innuendo puts a construction upon them different from what they would mean without the innuendo
34. 15 and 10 Wet. e. 76, § 61, 02 Statutes at Large
208 (1852).

35. Act of March 17, 1855 p.L. § 26, 295, later § 106 New Jersey Practice Act (P1.1903, 568).

3t English: Hemmings v. (lasson, 4 Sur. (N.S.) 834 (1858); New Jersey: Rand ‘cc Whiten, 38 N.J.L. 122 (1875); Andrew v. Deshler, 43 N.J.L. 16 (1881).
31. 166 Fed. 826(00., D.N.~., 1909).

the count containing them should be read

as two counts, one with the innuendo, and the other without it. Such was the con­elusion reached in Watkin v. Hall, L.R. 3 Q.B. 396, and in view of the last clause of the section the conclusion seems to be sound.” ~


And in some states, such as New York, in an action for slander brought by a woman imputing unchastity to her, it is not neces­sary to allege or prove special damages.3°
Neglect of Official Duty

CASE is a proper remedy against an officer

for failure to perform his duty, whereby the plaintiff has sustained an injury (though an action ex contractu on his bond may be a concurrent remedy), as, for not Levying an Execution, or for not returning it, or for not taking a Replevin Bond, or for taking an insufficient bond, etc.; and it will lie against an officer for making a False Re­turn; 41 or against an election officer for


33- “At Common Law the pleading of a plaintiff in a slander suit, contained, when necessary, what was known as an ‘Inducement’, a ‘Colloquium’, and an ‘Innuendo’, The peculiar office of these separate di­visions of the Pleading was distinctly circumscribed, but in more Modern Tunes, when the Technical Rules of Common-Law Pleading have been super­seded by the enactment of Codes of Practice, the extreme Common-Law Technical Rules with respect to Pleadings in Libel and Slander Cases have been largely modified, so that now, if a Pleading con­tains the necessary Allegations, whether they be found in that part of it appropriately styled the ‘Inducement,’ the ‘Colloquium’, or the ‘Innuendo’, it will be sufficient although not contained In that par­ticular division where the Rules of the Common-Law required it to be.” Thomas, J., in Castineau ‘cc Mccoy, 100 Ky. 463, 465, 227 SW. 801, 802 (1921).
39. In general, on LIbel and Slander, see Veeder, His­tory and Theory of the Law of Defamation, 3 CoIL. Rev. 546 (1903).
40. Sabourin v. Marshall, 3 Barn. & .Adol, 440, 110

lJng,Rep. 158 (1832); Mason ‘cc Paynter, 1 Gale & B.

381, 113 Eng.Rep. 1406 (1S4~ Billings v, Lafferty,

31 Ill. 318 (1863).
4*. Wintle ‘cc Freeman, 11 Adol, & El. 539, 113 Eng. Rep. 520 (1841).

Sec. 93


TRESPASS ON THE CASE

201


refusal to allow a vote; 42 and, generally, against an officer for any neglect of duty,43
Statutory Liability

WHENEVER a Statute prohibits an injury to an individual, or enacts that he shall re­cover a penalty or damages for such injury, and is silent as to the form of remedy, an Action on the Case (and in some cases other actions) will lie.44 And if a statute gives a remedy in the affirmative, without a nega­tive, express or implied, for a matter which was actionable in Case at Common Law, the party may still sue at Common Law.45 But where a statute gives a new right, or creates a new liability, and prescribes a particular remedy, or if it prescribes a new remedy to enforce a Common-Law right, and express­ly or impliedly excludes the Common Law remedy, the statutory remedy must be pur­sued.46


42. Keith ‘cc Howard, 24 Pick. (Mass.) 292 (1841); Gates v. Neal, 23 Pick. (Mass.) 308 (1840). Or against taxing officer for maliciously failing to tax a person, causing him to lose his right to votc. Griffin v. Rising, 11 I~lctc. (Mass.) 330 (1846).
43. English: Aireton v. Davis, 9 Bing. 741, 131 Eng.

Rep. 792 (1833); Jacobs v. Humphrey, 2 Cromp. &

lii. 413, 149 Eng.Itep. 821 (1884) Massachusetts:

Spear v. Cummings, 23 Pick. (Mass.) 224, 34 Am.

Dee. 53 (1839); Vermont: Abbott v. Kimball, 19 Vt.

551, 47 Am.Dec. 708 (1847).


44. President & College of Physicians London v. Sal­mon, 2 Salk. 451, 91 Eng.Rep. 391; Friend v. Dunks, 37 Mich. 25 (1877); Id. 39 Mich. 733 (1878).
44. Maine: Bearcamp River Co. v. Woodman, 2

Greenl. (Me.) 404 (1824); Proprietors of Frychurg

Canal Co. v. Frye, 5 Greenl. (Me.) 38 (1827); New

Hampshire: Adams cc Richardson, 43 N.H. 212

(1861); New Jersey: Coxe v. Bobbins, 9 N.J.L. 384

(1828); New York: Scidmore v. Smith, 13 Johns.

(N.Y.) 322 (1816); Almy ‘cc Harris, 5 Johns. (N.Y.)

175 (1809).


40. New Hampshire: Henniker v. Contoocook val. H.

B. Co., 29 N.H. 146 (1854); New Jersey: City of

Camden v. Allen, 26 N.J.L. 398 (1857); New York:

Almy ‘cc Harris, 5 Johns. (N.Y.) 175 (1809); Penn­sylvania: Weller v. Weyand, 2 Grant, Cas. (Pa.) 103

(1853); Brown V. White Deer Pp., 27 Pa. 109 (1856);

Wisconsin: Babb v. Mackey, 10 WIs. 371 (1860).


Thus, where a Statute authorizes the taking or injur­ing or private property for a public use, under the

Liability for Injuries by Animals

AT Common Law, if a wild or vicious beast is turned loose, and mischief immediately en­sues to the person or property of another, the injury is immediate, and Trespass1 not Case is the remedy.4~ But if a vicious animal is kept with knowledge of its dangerous pro­pensities, and a person is thereby injured, the remedy is in Case.43 Where, however, damage is done by a domestic animal, kept for use or convenience, the owner is not liable to action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief.49


If the action for injury by an animal is in Trespass, it should contain a concise state­ment as to the injury complained of, whether to the person, or to the personal or real property, and should allege that such injury was committed with force and arms and against the peace.5°
right of eminent domain, and prescribes the i-em­edy by which the owner shall obtain redress, that remedy must be pursued. Stevens v. Proprietors of Middlesex Canal, 12 Mass, 466 (1815) ; Proprietors of Sudbury Meadows v. Proprietors of Middlesex Canal, 23 Pick. (Mass,) 36 (1840); I-Macn v. Essex Co., 12 Cush. (Mass.) 475 (1853). But if the damage done is not incident to the exercise of tbc power given, but is due to an improper exercise of the power, Case or Trespass will lie. Massachusetts:

Mellen v. Western B. Corp., 4 Gray (Mass.) 301 (1855); Thompson v. Moore, 2 Allen (Mass.) 350 (1861); Michigan: Detroit Post Co. v. McArthur, 16 Mich. 447 (1868); Mississippi: Thornasson v. Ag­new, 24 Miss. 93 (1852).


47. Leame v. Bray, 3 East 593, 590, 102 Eng.Bep. 724,

725 (1803).


43. English: Mason ‘c Keeling, 12 Mod. 333, 1 Ld. Baym. 006, 91 Eng.Bep. 1305 (1699); Sarch V. Black­bnrn, 4 Car, & P. 297, 173 Eng.Rep. 712 (1830); Ala­bama: Durden v. Barnett, 7 Ala. 169 (1844); liii­nois: Stumps v. Kelley, 22 Ill. 140 (1859).
49. English: Buxendin V. Sharp, 2 Salk. 662 91 Eng. Rep. 564 (1690); New York: Vrooman v. Lawyer, 13 Johns. (N.Y.) 339 (1810).
30. Perry, Common-Law Pleading: Its History and Principles of Forms of Action, ~. III, Of Forms of ActIon, 73 (Boston, 1801).

202


OFFENSIVE PLEADINGS

Ch.S


ANTICIPATING DEFENSES IN CASE

94. In some Jurisdictions the plaintiff must negative the possible existence of certain tech­nical defenses, viz, contributory negligence, fellow-servant rule, and assumption of risk.


IN some Jurisdictions it is necessary in a Declaration for negligence by a servant against the employer to negative the de­fenses of contributory negligence, fellow-servant rule, and assumption of risk. In Caluinet Iron and Steel Company v. Martin,5the general rule is declared to be that, in

order to recover for injuries from negligence, it must be alleged and proved that the plain­tiff was, at the time he was injured, observ­ing ordinary care for his personal safety. After the period of the statute of limitations, the declaration cannot be amended to supply this “substantial fact.” 52 In an Action of Trespass on the Case by a servant against

his employer a Declaration was defective in

Illinois and some other states which did not negative knowledge or assumption of risk.53 It has been held that negativing knowledge of the risk is insufficient as it does not appear but that the servant had easy means of knowing.5


In an action by a servant against his em­ployer to recover for a personal injury for negligence, the declaration must negative the defense of the fellow-servant rule, if it is alleged that the negligent acts were done by the servants of the defendant without showing to what class they belonged. It is held, however, that if the allegations indicate
51. 115 III. 358, 3 N.E. 456 (1885).
52. Walters v. City of Ottawa, 240 Ill. 259, 266, 88 N. B. 651 (1909).
~‘ City of LaSalle ‘cc Kostka, 190 III. 130, 60 N.E. 72 (1901); Dalton v. Bhode Island Co., 25 RI. 574, 57 AtI. 383 (1904).

that the plaintiff was not a fellow servant,. no negative allegation is needed.55


What the plaintiff must allege as a matter of pleading to state a cause of action is a more or less arbitrary matter. Since the plaintiff comes into court asking relief, it might seem that logically he should be re­quired to set up and prove all the conditions essential to recovery, and that he should negative all possible defenses, such as con­tributory negligence, assumption of risk, and fellow-servant rule. In fact, however, the plaintiff is ordinarily only required to make out a prima facie case and need not refer to all the conditions, positive and negative, which are ultimately essential to a recovery. The plaintiff must show an apparent reason for his request and give fair notice of the facts relied on as the basis of his claim. This will, in general, indicate as to what matters the plaintiff has the burden of proof, which is a question of fairness, policy and conveni­ence. Matters of justification and excuse are for the defendant to prove, since it is unfair to require the plaintiff to disprove the existence of each and all of them,56 The defenses of contributory negligence, assump­tion of risk, and fellow-servant rule are tech­nical at best and should not be favored by the rules of pleading. If they are to be raised at all, they should be set up affirmatively by the defendant.
55. Illinois: Libby, McNeill & Libby v. Seherman, 146

III. 540, 34 N.E. 801, 37 Am.St.Rep. 191 (1893);

Sehillinger Bros. Co. v. Smith, 225 Ill. 74, 81, 80 N.

B. 05 (1907); Melnerney v. Western Packing & Pro­vision Co., 249 IlL 240, 243, 94 N.E. 519 (1911)

Richter v. Chicago & B. B. Co., 273 Ill. 625, 113 N.

B. 153 (1016); Rhode Island: DiMarcho v. Builders’

Iron Foundry, 18 R.L 514, 27 Atl, 328, 28 AU. 661

(1894).
56. in Illinois the burden of proof to negative as­sumption of risk was on the plaintiff. Swift Co. V. Gaylord, 229 111. 389, 840, 82 N.E. 299 (1901).

II- Gould v. Aurora, B. & C. Ry. Co., 141 Ill.App. 344

(1900).


Sec. 96

TRESPASS ON TUE CASE

203

TIlE EXPANSIONISTIC CHARACTER



OF CASE
95. The Action of Trespass on the Case was adapted to many circumstances and factual situations which characterized the growth of society, and the ability of the law to meet the demands of a constantly advancing civilization largely has been made possible by the expansion­istic character of this actzon.
IT Is impossible to enumerate all the fac­tual situations in which an Action of Tres­pass on the Case can be maintained, hence the particular applications of the action above discussed are merely illustrative of its enor­mous scope. It is referred to as the Great Residuary Remedy of the Common Law for the reason that the law has never placed a limitation on its continual expansion. As we have seen it was largely through the con­stant and ever increasing application of this action to a myriad of different factual situa­tions involving a wrong not remediable by any other Form of Action which enabled the Judges of England to build up the Common Law of that country as it is known today.
Before modern research revealed that Case did not originate out of the Statute of West­minster 11 (1285),~~ it was often suggested that a liberal construction of that Statute would have eliminated any need for the Chancellor’s extraordinary jurisdiction in fill­ing out the alleged deficiencies of the Com­mon Law, This suggestion was predicated upon the view that Equity originated out of the failure of the Common Law Courts to adapt themselves to the changes and needs of a developing society. It is submitted, how­ever, that the view that Equity originated out of a failure of the Common Law Courts to so adapt themselves is wholly untenable and contrary to fact, for, as has been ob­served, the Common Law Courts could in no
WI. Fifoot, ~istory and Sources of the Common Law, e. Iv, The Development of Actions on the Case, 66— 78 (London, 1940).

event have afforded the kind of relief which Equity was eventually to offer without com­pletely revolutionizing their procedures and enlarging their jurisdiction.


What is true, however, is that the Action of Trespass on the Case revealed such great potentialities as to permit its adaptability to the many circumstances and factual situa­tions which have characterized the growth of our society. Indeed, the ability of our law to meet the demands of our constantly

advancing civilization largely has been made possible by the expansionistic character of this action. And, in this connection, it should be remembered that the capacity of this action has not been destroyed by the Re­formed Procedure, under which the Single Action provided is in the Nature of an Action on the Case, and hence the process of ex­pansion and growth continues at full pace.


STATUS UNDER MODERN CODES, PRACTICE ACTS AND RULES
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