Frolich v. McKiernan

California Supreme Court

Frolich v. McKiernan

24 P. 114, 84 Cal. 177, 1890 Cal. LEXIS 783

CourtCalifornia Supreme Court

DecidedMay 29, 1890

DocketNo. 12670

StatusPublished

Cited by5 cases

This text of 24 P. 114 (Frolich v. McKiernan) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frolich v. McKiernan, 24 P. 114, 84 Cal. 177, 1890 Cal. LEXIS 783 (Cal. 1890).

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Opinion

McFarland, J.

Action for slander; verdict and judgment for plaintiff for $450; defendant appeals from the judgment upon the judgment roll alone. The only points made by the appellant relate to the sufficiency of the complaint, to which he demurred, upon the grounds that it does not state facts sufficient to constitute a cause of action, and is ambiguous, uncertain-, and unintelligible.

There is supposed to be still some relic of the exaggerated nicety with which pleadings in actions of libel and slander had formerly to be constructed, and it is invoked in this case. The words alleged in the complaint to have been slanderously spoken by defendant of plaintiff are these: “You.thief,” “youswindler,” “you scoundrel,” [180]*180“you want to swindle me out of my money.” Of this language the ordinary man would say, with the hostess in Henry IV., “These are very bitter words”; but it is contended that, for the purposes of the law of slander, the sting of the first part of the language is removed by the qualification of the latter part. That is to sa3q the contention is, that defendant only said that plaintiff was a thief because he wanted to swindle defendant out of his money; and as wanting to swindle does not make a man a thief, therefore defendant did not, in law, call plaintiff a thief; and as wanting to swindle a man out of his money does not constitute a crime, therefore the alleged language is not actionable. There is, no doubt, some authority for this contention; but the complaint minutely and in detail sets forth what defendant meant by the language used, and how he meant to be understood by those in whose presence it was used, and how the latter understood it, and, moreover, that plaintiff, was the secretary of a certain corporation of which defendant was president, and that the language was spoken of and concerning plaintiff as such secretary, for the purpose of injuring him in his said office. This was sufficient to make, the language actionable, and it was not necessary to allege special damages. (Civ. Code, sec. 46; Butler v. Howes, 7 Cal. 87.)

We see nothing in the points that the complaint was ambiguous, uncertain, or unintelligible.

Judgment affirmed.

Sharpstein, J., and Fox, J., concurred.

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McFarland, J.

Action for slander; verdict and judgment for plaintiff for $450; defendant appeals from the judgment upon the judgment roll alone. The only points made by the appellant relate to the sufficiency of the complaint, to which he demurred, upon the grounds that it does not state facts sufficient to constitute a cause of action, and is ambiguous, uncertain-, and unintelligible.

There is supposed to be still some relic of the exaggerated nicety with which pleadings in actions of libel and slander had formerly to be constructed, and it is invoked in this case. The words alleged in the complaint to have been slanderously spoken by defendant of plaintiff are these: “You.thief,” “youswindler,” “you scoundrel,” [180]*180“you want to swindle me out of my money.” Of this language the ordinary man would say, with the hostess in Henry IV., “These are very bitter words”; but it is contended that, for the purposes of the law of slander, the sting of the first part of the language is removed by the qualification of the latter part. That is to sa3q the contention is, that defendant only said that plaintiff was a thief because he wanted to swindle defendant out of his money; and as wanting to swindle does not make a man a thief, therefore defendant did not, in law, call plaintiff a thief; and as wanting to swindle a man out of his money does not constitute a crime, therefore the alleged language is not actionable. There is, no doubt, some authority for this contention; but the complaint minutely and in detail sets forth what defendant meant by the language used, and how he meant to be understood by those in whose presence it was used, and how the latter understood it, and, moreover, that plaintiff, was the secretary of a certain corporation of which defendant was president, and that the language was spoken of and concerning plaintiff as such secretary, for the purpose of injuring him in his said office. This was sufficient to make, the language actionable, and it was not necessary to allege special damages. (Civ. Code, sec. 46; Butler v. Howes, 7 Cal. 87.)

We see nothing in the points that the complaint was ambiguous, uncertain, or unintelligible.

Judgment affirmed.

Sharpstein, J., and Fox, J., concurred.

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24 P. 114, 84 Cal. 177, 1890 Cal. LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frolich-v-mckiernan-cal-1890.

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