Keller v. Dean

57 A.D. 7, 67 N.Y.S. 842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1900
• Status: Published

Opinion

Lattghlin, J.:

The action, is for slander. The complaint alleges that the defendant maliciously spoke of and concerning the plaintiff in the presence and hearing of various persons, the following false and defamatory words : “ Charles Keller set fire. to. my barn. I will never let Keller get the insurance he has on his tobacco. God damn him, he set my building afire, and I have got a witness right here in the room who will swear to it that he set it afire.”

The complaint contains no innuendo or other allegation as to the sense in which these words were used or Understood. At the opening of the case the defendant moved to dismiss the complaint upon the ground that it failed to state a cause of action in that these words were not actionable without an innuendo or averment that the defendant thereby intended to charge the plaintiff with the commission of a crime, or that they were so understood. Motions for a nonsuit and for the direction of a verdict were made upon the same ground, both of which were denied and exceptions were duly taken by the defendant.

Section 488 of the Penal Code provides that a person who willfully burns or sets on fire a building which is at the time insured against loss or damage by fire, with intent to prejudice the insurer thereof, or who willfully burns or sets on fire a building under circumstances not amounting to arson in the first or second degree, is guilty of arson in the third degree.

According to the complaint the charge was distinctly made that plaintiff burned a building, to wit, a barn, owned by the defendant; and it will be observed, therefore, that the only word omitted from the statutory definition of the crime of arson in the third degree is “ willfully.”.

The words alleged to have been uttered by the defendant con- . cerning the plaintiff would, we think, ordinarily and naturally be understood by an intelligent man and' by people generally as charging the plaintiff with having intentionally set fire to the defendant’s barn for the purpose of destroying the same, thereby committing the crime of arson, and these words w.ere, therefore, as matter of law actionable per se, and the pleading was sufficient without an innuendo. (Townsh. Sland. & Lib. § 166; Turton v New York Recorder Co., 144 N. Y. 144 ; Hemmens v. Nelson, 138 id. 517, 530, 531; Case v. Buckley, 15 Wend. 327; Carroll v. White, 33 Barb. 615 ; Mooney v. Bennett, 44 App. Div. 423 ; Manner v. Simpson, 13 Daly, 156 ; More v. Bennett, 48 N. Y. 472; Garby v. Bennett, 40 App. Div. 163 ; Henderson v. Commercial Advertiser Assn., 46 Hun, 504; Tuttle v. Bishop, 30 Conn. 80; Frank v. Dunning, 38 Wis. 270 ; Giddens v. Mirk, 4 Ga. 364; Waters v. Jones, 3 Port. [Ala.] 442; House v. House, 5 H. & J. 125; Logan v. Steele, 1 Bibb, 593 Nailor v. Ponder, 1 Marv. [Del.] 408; West v. Hanrahan, 28 Minn. 385.)

The only other questions argued upon this appeal relate to the order of proof and to the reception of evidence tending to show malice. They do not present any reversible error or require extended consideration.

The judgment and order appealed from should be affirmed.

All concurred.

Judgment and order affirmed, with costs.