Fidler v. Delavan

20 Wend. 57

Opinion

By the Court, Nelson, Ch. J.

*

The pleadings admit that the plaintiff is one of the firm of Fidler & Taylor, and, therefore, that he is particularly designated in the alleged libel; the objection that he was one of a class referred to, which was successfully taken in the case of White v. Delavan, 17 Wendell, 49, does not apply. By pleading over, the defendant concedes thp publication to have been of and' concerning the plaintiff, &c. and puts himself upon the justification, Cro. Car. 288, 385; Lutw. 627; Cro. Jac. 668, 683; Cro. Eliz. 825, so far as defect of form may exist.

The main question then, in this case, is as to the validity of the pleas, which set up the truth in bar of the action. They must be co-extensive with the charge in the publication, and which is to be construed as it would be understood by mankind in general, giving to the words their ordinary meaning. Courts aré not to understand it in a different sense from the general reader. The soundness of this rule of interpretation must be obvious, as it is the effect of the libel upon the community that constitutes the gravamen of the action.

We must enquire then^-si, into the true meaning of the publication, as a proper understanding of it is essential, in order to enable us to test the sufficiency of the pleas. The pleader has explained his understanding of the publication by the innuendoes in the declaration, and they have not been denied j they are admitted by default for want of plea, as was adjudged in the •case of Tillotson v. Cheetham, 3 Johns. R. 56, and so on demurrer. Here the general issue, which would have put the plaintiff to the proof of the libel as declared upon, and required Mm to maintain the meaning as imputed by the innuendoes has been waived ; all is admitted as set forth 5 the defendant assuming the affirmative, seeks to shield himself by shewing the truth of the •charge as thus spread upon the record. This view, however, is not important, as there can be no doubt about the true meaning of the publication, or that the one imputed in the declaration is ■correct. It is substantially as follows : That six or seven years ago (that is, previous to the publication,) the plaintiff caused his ■malting establishment on the hill in Albany to be supplied with filthy, putrid water, such as is taken from pools, gutters and ditches, in which were dead putrid animals j that the water was often so foul and polluted as to be green on the surface, and nearly as thick as cream with filth ,• that such water had been used by the plaintiff for several seasons in malting for his brewery 5 and that steep-tubs used for that purpose, which usually contained seven hogsheads, had a deposit of ten or twelve inches of the most filthy matter, that settled to the bottom of them. This is the essence of the charge as laid in the declaration, as understood by the general reader, and which the defendant was bound to justify.

Now the first radical defect in the pleas is, that the pleader undertakes to justify the libel literally, without regard to its meaning or legal effect. For instance, it is set forth that on the 1st December, &c. Fidler & Taylor’s malting establishment (meaning the one owned and possessed by the plaintiff and one Taylor) was supplied with water for malting from a stagnant pool, &c., without averring directly that the establishment was supplied by the plaintiff, or through his instrumentality,, which is the evident sense of the publication. The whole scope of it leads to this conclusion. The plea therefore falls short of a justification as to this part of the charge.

Another defect is, that the evidence of the facts charged is spread out in the plea instead of the facts themselves. This is a violation of one of the first rules of pleading, which requires a statement of the facts constituting the plaintiff’s cause of action, or the defendant’s ground of defence. 1 Chitty's Pl. 216. A plea should be direct and positive, and not by way of rehearsal or argument, which leads to prolixity and expense. 1 Chitty, 518. 8 Cowen, 728, 729. 15 Wendell, 656. The error of the pleader has arisen from not regarding sufficiently the legal effect of the libel, which is all that is necessary to meet and defend, and which must be defended. By reason of this error he has undertaken to justify in the terms and words of it. He has thus followed the language throughout, affirming the truth of all that is there stated, with little more than the additions of time and place. This has led to a tedious detail of the evidence, which might be necessary on the trial to establish the truth of the charges, but necessary there only. A particular description is given of the places mentioned in the libel whence the filthy water was taken, where collected and deposited in the malting establishment; that the water there used was taken from the several places, mentioning them, in which were at several times dead animals, See. Now it is apparent that all this is but evidence of the facts intended to be charged upon the plaintiff, namely, that he used in malting grain for his brewery, foul and polluted water, such as is taken from stagnant pools, &c. containing dead putrid animals. Again, the plea states that water was carried to the malt house of the plaintiff, &c. of great thickness, to wit, as thick as cream with filth. This is but a literal justification of the charge; carrying the filthy water to the malt house simply, contained no imputation upon the plaintiff or his establishment, except by inference or argument. The pleas do not meet the sting of the libel, namely, that the water of this description was used by the plaintiff in the business of malting on the hill. This is the charge intended by the writer, from the language used, and the necessary inference to ,be drawn by the reader. It should therefore have been directly met, and not by; way of u rehearsal and argument.” The same observations are applicable to the next paragraph, u that water passed on carts from the direction of the big pond” &c. By the language of the libel the writer intended to convey the imputation that such water was used by the plaintiff in malting—if not, then the libel contained no charge, and should not have been answered. Carrying water upon carts to the establishment was harmless.

The essence of the charge is comprehended in a few words, as we have already seen ; and it is not necessary that the pleader should extend his justification beyond it. The error on this point has led to great and perplexing prolixity, which should he avoided, as its effect is to confuse and embarrass the issue and trial.

Judgment for plaintiff.

This case was decided in May term last.