Opinion,
Mr. Justice Cuabk:
The plaintiff, Thompson Davis, was the owner of a three-story stone merchant grist mill, situate in Schuylkill township, Chester county. The mill was insured in the Mutual Fire Insurance Company of Chester county in the sum of $2,500, and in the AStna Fire Insurance Company in the sum of $5,000. Whilst thus insured, on March 13,1889, the mill was destroyed by fire. The defendant, Peter G. Carey, is the agent of the first-named company, and is one of the managers and adjusters thereof.
In the plaintiff’s statement of claim it is charged that about the first day of June, 1889, and at various other times, the defendant charged the plaintiff with setting fire to and burning [322]*322the mill, to defraud the insurance companies. If the words uttered were actionable in themselves, without proof of special damage, the testimony was abundant to send the case to the jury. The charge was that he had burned the mill himself; that he could not have chosen a better day; that it was beyond doubt he had burned the mill; and, taking these expressions in the connection in which they were made, they were open to the implication that he had burned the mill to defraud the insurance companies. The court having given peremptory instructions to find for the defendant, the truth of the testimony adduced by the plaintiff, with all reasonable inferences therefrom, must be assumed. But the learned judge of the court below was of opinion they were not actionable, and upon that ground gave peremptory instructions to find for the defendant.
Upon the question what words containing the imputation of a crime are actionable, without proof of special damages, the cases in this court are in some apparent confusion.. They are not contradictory. The course of decision is entirely consistent ; the confusion arises from what has been said, not what was decided. The cases are in accord that such words are not actionable unless they import an offence indictable and punishable, either at the common law or by statute: Harvey v. Boies, 1 P. & W. 12; Lukehart v. Byerly, 53 Pa. 418; but this is not the criterion: Klumph v. Dunn, 66 Pa. 141.
In Miles v. Oldfield, 4 Y. 423, the words were, “ You are a vagrant.” It was objected that these words were not actionable, but this Court said: “The act of 21st February, 1767, defines the nature of vagrancy, and authorizes a justice of the peace to commit vagrants to the common jail, there to be kept at hard labor for any time not exceeding one month. To charge a person with an offence which subjects him to punishment of this kind is, in the opinion of the Court, actionable.” This case may, however, be distinguished from others in this, that it was not only averred in the declaration, but it was proved, in the nature of a special injury, that in consequence of the words spoken the plaintiff was apprehended and taken before a justice of the peace as an idle and disorderly person, and thereby suffered damage. In Shaffer v. Kintzer, 1 Binn. 542, Chief Justice Tilg-hmaít says: “With regard to words which will support an action of slander, I take the rule to be [323]*323as laid down by C. J. De Giiey, in the case of Onslow v. Horne, 3 Wils. 186, in the year 1771, which is an authority in this court. They must contain an express imputation of ‘ some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor.’ ” But in Brown v. Lamberton, 2 Binn. 34, the crime charged was adultery, and in Walton v. Singleton, 7 S. & R. 449, it was fornication merely. No special damage was laid in either case, and it was held that the words were actionable. To the same effect are Beirer v. Bushfield, 1 W. 23; Vanderlip v. Roe, 23 Pa. 82; Klumph v. Dunn, 66 Pa. 141, and Rhoads v. Anderson, 12 Cent. R. 727, 13 Atl. Rep. 823. To call a woman a whore or an adulteress is actionable ; the punishment is not infamous, but it is actionable, because it is a charge of impurity, depravity, and moral turpitude.
In Andres v. Koppenheafer, 3 S. & R. 254, the slanderous words spoken charged the publication of a libel, an indictable offence at the common law, now punishable with fine and imprisonment. Chief Justice Tilghman, delivering the opinion of this court, said: “ But, supposing the words to imply an indictable offence, it is contended that still they are not actionable, because there is nothing infamous in the crime of libel. It is laid down by some elementary authors that all words are actionable which import an offence for which one is indictable and punishable by fine and imprisonment. I incline to think that this is carrying the matter rather too far. To say that a man has committed an assault and battery, is charging him with an offence punishable by fine and imprisonment, but yet no action of slander has been sustained for such words. It seems that there should be something in the offence of an infamous or disgraceful nature; either a felony or a misdemeanor which affects one’s reputation.” Mr. Justice Gibson, in the same case, said: “ In England the law is broadly laid down that words charging an offence that would subject the party to punishment by indictment are actionable in themselves. In Brooker v. Coffin, 5 Johns. 188, the rule is restrained to a charge that would, if true, subject the party to an indictment for a crime involving moral turpitude, or that would draw after it an infamous punishment. This distinction appears to me a sound one, and to be founded in reason and good sense. There [324]*324is a variety ot misdemeanors, to the commission of which not even the shadow of disgrace is attached by the world, and to ■be accused of which would not be likely to induce the vexation -of a prosecution, if the accused were innocent, and, if guilty, he ought not to complain. I think it unreasonable that a charge of having committed a nuisance, assault and battery, and the like should be held actionable.” We have quoted extensively from this case of Andres v. Koppenheafer because it seems to be the leading case in Pennsylvania, and contains an exposition of the law which has been followed in the later cases.
In Todd v. Rough, 10 S. & R. 18, it was held to be actionable, in a conversation concerning certain boundary trees and allowed landmarks, to say of the plaintiff that he moved the line and made a new line; for, said this court, in a conviction of this offence, “ not only would the plaintiff be subject to pecuniary loss, but to loss of character. The removal of boundaries has' always been held in execration: the curse of G-od was denounced against it by the Mosaic law; the Romans considered it an infamous offence, and all civilized nations have been of the same opinion. The reason of this general detestation is evident; without certainty of boundary, there is no certainty of property in land.” In Beck v. Stitzel, 21 Pa. 524, the plaintiff was or had been one of the administrators of Adam Stitzel, deceased, but had settled his final account some sixteen years before the words complained of were spoken. The defendant charged that the plaintiff, when administrator, “ had a room in which were two beds, and both beds were full of leather which he had smuggled away at the time of the appraisement.” No special damage was averred in the narr, and none was proved; it was held the words were actionable. In the opinion, this Court said: “ Where the charge is of an of-fence, it is usually said that it must involve moral turpitude and danger of punishment.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion,
Mr. Justice Cuabk:
The plaintiff, Thompson Davis, was the owner of a three-story stone merchant grist mill, situate in Schuylkill township, Chester county. The mill was insured in the Mutual Fire Insurance Company of Chester county in the sum of $2,500, and in the AStna Fire Insurance Company in the sum of $5,000. Whilst thus insured, on March 13,1889, the mill was destroyed by fire. The defendant, Peter G. Carey, is the agent of the first-named company, and is one of the managers and adjusters thereof.
In the plaintiff’s statement of claim it is charged that about the first day of June, 1889, and at various other times, the defendant charged the plaintiff with setting fire to and burning [322]*322the mill, to defraud the insurance companies. If the words uttered were actionable in themselves, without proof of special damage, the testimony was abundant to send the case to the jury. The charge was that he had burned the mill himself; that he could not have chosen a better day; that it was beyond doubt he had burned the mill; and, taking these expressions in the connection in which they were made, they were open to the implication that he had burned the mill to defraud the insurance companies. The court having given peremptory instructions to find for the defendant, the truth of the testimony adduced by the plaintiff, with all reasonable inferences therefrom, must be assumed. But the learned judge of the court below was of opinion they were not actionable, and upon that ground gave peremptory instructions to find for the defendant.
Upon the question what words containing the imputation of a crime are actionable, without proof of special damages, the cases in this court are in some apparent confusion.. They are not contradictory. The course of decision is entirely consistent ; the confusion arises from what has been said, not what was decided. The cases are in accord that such words are not actionable unless they import an offence indictable and punishable, either at the common law or by statute: Harvey v. Boies, 1 P. & W. 12; Lukehart v. Byerly, 53 Pa. 418; but this is not the criterion: Klumph v. Dunn, 66 Pa. 141.
In Miles v. Oldfield, 4 Y. 423, the words were, “ You are a vagrant.” It was objected that these words were not actionable, but this Court said: “The act of 21st February, 1767, defines the nature of vagrancy, and authorizes a justice of the peace to commit vagrants to the common jail, there to be kept at hard labor for any time not exceeding one month. To charge a person with an offence which subjects him to punishment of this kind is, in the opinion of the Court, actionable.” This case may, however, be distinguished from others in this, that it was not only averred in the declaration, but it was proved, in the nature of a special injury, that in consequence of the words spoken the plaintiff was apprehended and taken before a justice of the peace as an idle and disorderly person, and thereby suffered damage. In Shaffer v. Kintzer, 1 Binn. 542, Chief Justice Tilg-hmaít says: “With regard to words which will support an action of slander, I take the rule to be [323]*323as laid down by C. J. De Giiey, in the case of Onslow v. Horne, 3 Wils. 186, in the year 1771, which is an authority in this court. They must contain an express imputation of ‘ some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor.’ ” But in Brown v. Lamberton, 2 Binn. 34, the crime charged was adultery, and in Walton v. Singleton, 7 S. & R. 449, it was fornication merely. No special damage was laid in either case, and it was held that the words were actionable. To the same effect are Beirer v. Bushfield, 1 W. 23; Vanderlip v. Roe, 23 Pa. 82; Klumph v. Dunn, 66 Pa. 141, and Rhoads v. Anderson, 12 Cent. R. 727, 13 Atl. Rep. 823. To call a woman a whore or an adulteress is actionable ; the punishment is not infamous, but it is actionable, because it is a charge of impurity, depravity, and moral turpitude.
In Andres v. Koppenheafer, 3 S. & R. 254, the slanderous words spoken charged the publication of a libel, an indictable offence at the common law, now punishable with fine and imprisonment. Chief Justice Tilghman, delivering the opinion of this court, said: “ But, supposing the words to imply an indictable offence, it is contended that still they are not actionable, because there is nothing infamous in the crime of libel. It is laid down by some elementary authors that all words are actionable which import an offence for which one is indictable and punishable by fine and imprisonment. I incline to think that this is carrying the matter rather too far. To say that a man has committed an assault and battery, is charging him with an offence punishable by fine and imprisonment, but yet no action of slander has been sustained for such words. It seems that there should be something in the offence of an infamous or disgraceful nature; either a felony or a misdemeanor which affects one’s reputation.” Mr. Justice Gibson, in the same case, said: “ In England the law is broadly laid down that words charging an offence that would subject the party to punishment by indictment are actionable in themselves. In Brooker v. Coffin, 5 Johns. 188, the rule is restrained to a charge that would, if true, subject the party to an indictment for a crime involving moral turpitude, or that would draw after it an infamous punishment. This distinction appears to me a sound one, and to be founded in reason and good sense. There [324]*324is a variety ot misdemeanors, to the commission of which not even the shadow of disgrace is attached by the world, and to ■be accused of which would not be likely to induce the vexation -of a prosecution, if the accused were innocent, and, if guilty, he ought not to complain. I think it unreasonable that a charge of having committed a nuisance, assault and battery, and the like should be held actionable.” We have quoted extensively from this case of Andres v. Koppenheafer because it seems to be the leading case in Pennsylvania, and contains an exposition of the law which has been followed in the later cases.
In Todd v. Rough, 10 S. & R. 18, it was held to be actionable, in a conversation concerning certain boundary trees and allowed landmarks, to say of the plaintiff that he moved the line and made a new line; for, said this court, in a conviction of this offence, “ not only would the plaintiff be subject to pecuniary loss, but to loss of character. The removal of boundaries has' always been held in execration: the curse of G-od was denounced against it by the Mosaic law; the Romans considered it an infamous offence, and all civilized nations have been of the same opinion. The reason of this general detestation is evident; without certainty of boundary, there is no certainty of property in land.” In Beck v. Stitzel, 21 Pa. 524, the plaintiff was or had been one of the administrators of Adam Stitzel, deceased, but had settled his final account some sixteen years before the words complained of were spoken. The defendant charged that the plaintiff, when administrator, “ had a room in which were two beds, and both beds were full of leather which he had smuggled away at the time of the appraisement.” No special damage was averred in the narr, and none was proved; it was held the words were actionable. In the opinion, this Court said: “ Where the charge is of an of-fence, it is usually said that it must involve moral turpitude and danger of punishment. This element of moral turpitude is necessarily adaptive; for it is itself defined by the state of public mdrals, and thus far fits the action to be at all times accommodated to the common sense of the community. The other element, danger of punishment, is not a necessary one; for it is said in Van Ankin v. Westfall, 14 Johns. 233, and repeated here in Smith v. Stewart, 5 Pa. 376, that words are ac[325]*325tionable, even though they charge an offence barred by the statute of limitations, and it has often been decided that words are actionable though they charge that the punishment has already been inflicted: Smith v. Stewart, 5 Pa. 376; Beavor v. Hides, 2 Wils. 300; Fowler v. Dowdney, 2 Moody & R. 119; Gainford v. Tuke, Cro. Jac. 536.”
From this reference to a few of the cases, it is clear that when Mr. Justice Church, in Gosling v. Morgan, 32 Pa. 273, said that the undisturbed authority of the leading cases of Shaffer v. Kintzer, 1 Binn. 537; McClurg v. Ross, 5 Binn. 218; and Andres v. Koppenheafer, 3 S. & R. 255, establishes the principle, that words spoken of a private person are only actionable when they contain a plain imputation, not merely of some indictable of-fence, but one of an infamous character or subject to an infamous and disgraceful punishment, the word “ infamous ” could not have been used in its technical, but rather in its popular sense. The only crimes which work infamy and consequent incompetency as a witness, are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, attaint of false verdict, and other offences of like description, which involve the charge of falsehood and affect the public administration of justice: Commonwealth v. Shaver, 3 W. & S. 342; Schuylkill Co. v. Copley, 67 Pa. 390. The profession would certainly be greatly surprised to learn that slanderous words are, in Pennsylvania, actionable only when they impute a crime of this class. Our books are full of cases to the contrary.
In Klumph v. Dunn, 66 Pa. 146, it was held that words imputing the commission of the crime of adultery, in another state, are actionable here. “ By the laws of Pennsylvania,” says Mr. Justice Sharswood, “from 1705 to the present time, adultery has always been an indictable offence, and of its moral turpitude there can be no question. The plaintiff was a married man. The defendant knew him to be so, and meant to charge him with this offence and in language which was designed to convey his own sense of its detestable character, especially, no doubt, in view of the race and color of the party who was alleged to have been a partaker in the crime. We are of opinion that the words were actionable per se, whether they were limited to the state of Georgia or were general.....What, then, is the criterion? Mr. Starkie, after an elaborate review of the cases, [326]*326comes to the conclusion that, as it is necessary to have some clear and certain rule by which the line of demarkation between actionable and non-action able words can be drawn, none could be adopted more convenient than that which refers the question to the criminal law, and confines the action to imputations of moral turpitude, punishable.in the temporal courts : 1 Starkie on Sland. & L., 27.”
The English rule is that spoken words, which impute that the plaintiff has been guilty of a crime punishable with imprisonment, are actionable, without proof of special damages: Odger on Sland. & L., 54, and cases there cited. But, in the American cases, importance is attached to the inherent nature of the indictable act, and also to the punishment which the law assigns to it, upon the principle that social degradation may result from either. Brooker v. Coffin, 5 Johns. 190, is the leading case in this country. The rule there laid down is known as the American rule, and is as follows: “ In case the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable.” u This test,” says Mr. Newell in his very recent treatise on Defamation, Libel, and Slander, page 97, “ has been accepted and applied so often and so generally that it may now be accepted as settled law.” Brooker v. Coffin was referred to in Andres v. Koppenheafer, with approval, and is spoken of as founded in reason and good sense. The cases in Pennsylvania are in ac•cord with it, and we regard it as stating the true rule.
The plaintiff in this case was charged with burning his own mill, to defraud the insurance companies. The offence involves moral turpitude; it is of a base, and in a popular sense infamous character. It is punishable by separate and solitary confinement at labor in the penitentiary, for a period not exceeding seven years, which is a disgraceful punishment, inflicted on infamous offences. The words alleged to have been spoken were therefore, without doubt, actionable per se, and upon this ground
The judgment is reversed, and a venire facias de novo awarded.