Friedlander v. Rapley

38 App. D.C. 208, 1912 U.S. App. LEXIS 2110

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1912
• Docket: No. 2315
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first count of the declaration is founded on the alleged defamatory words spoken in the presence of others, and counts 2 and 3, although the word “assaulted” is used in the introduction of the defamatory words, are but other forms of stating the same cause of action.

There seems to be a recognized distinction between false words spoken and those written, in respect of their constituting a ground of action per se. Pollard v. Lyon, 91 U. S. 225— 228, 23 L. ed. 308-311; Odgers, Libel & Slander, p. 3; Townshend, Slander & Libel, p. 221. However this may be, words falsely spoken of another must, to be actionable per se in this jurisdiction, impute to him the commission of some criminal offense for which he may be indicted and punished, if the charge involves moral turpitude and is such as will injuriously affect his social standing. Pollard v. Lyon, 91 U. S. 225—234, 23 L. ed. 308-313.

In considering whether this is the effect of the words, the false speaking of which is alleged in the declaration, the accompanying innuendo stating their purport must be disregarded. If not in themselves actionable, they cannot be made so by innuendo. Warner v. Baker, 36 App. D. C. 493—501.

Omitting the innuendos by which they are separated in •their statement in the declaration, the following are the words uttered: “These tickets are dated December 1st. You must have gotten them in some crooked way. You have done this -crooked work before, and we don’t want you to come into this theater again, and you can’t come into this office any more. You crumpled these tickets up so that I could not see the date; ■this incident is closed with me.”

Those wo-rds are abusive, and convey the meaning that plaintiff had in a crooked way — that is to say, by trick or artifice— obtained entrance into the theater. Persons of ordinary understanding, hearing them uttered and giving them credence, would understand that plaintiff was a trickster and a crook or fraud, but we do not think that they would understand that he was charged with the indictable offense of false pretenses. Code section 842 [31 Stat. at L. 1326, chap. 854]. They are, therefore, not actionable per se. Any special damage resulting therefrom must have been specially alleged.

2. Assuming that the fourth count of the declaration, charging an assault and battery, was properly joined in the same declaration with the counts charging slander, under section 1532 of the Code [31 Stat. at 1. 1418, chap. 854], and that it would be sufficient if the cause of action were against Fowler, who is charged with the assault, it remains to consider whether it states a cause of action against defendant, Rapley. It is a well-settled rule of pleading that the sufficiency of each count in a declaration must be determined by its own averments. 5 Enc. Pl. & Pr. 32; 31 Cyc. 123.

How far the matter of one count may by reference be incorporated into another, we need not inquire; because there is no reference in the fourth count to any averment or matter of inducement recited in the others. The averment that defendant, “by his agent (acting within the scope of the duties of his employment)” assaulted and beat the plaintiff, is not the statement of any fact showing that Fowler, in making the assault, was the agent of the defendant, charged with the conduct of any matter that would make the principal responsible for either his authorized or unauthorized acts done in the course of his employment, but a mere conclusion of law.

The contention of the plaintiff is that defendant, being the proprietor of a place of amusement and owing a duty to his patrons to see they are protected from insult, violence, and danger, is responsible for the wrongful acts of his agents and employees who take tickets, provide seats, maintain order, etc., whether such acts were authorized by him or not. Assuming this to be a correct statement of the law, yet the facts to which the rule of law applies must be stated in the pleading. It is a familiar rule in pleading that where any fact is necessary to be proved on the trial, in order to sustain the plaintiff’s right of recovery the declar'ation must contain a substantial averment of such fact in order to let in proof of it.

The court was right in holding that the several counts of the declaration did not state a cause of action, and the demurrer was, therefore, properly sustained.

The judgment will be affirmed, with costs. Affirmed.