The first count of the complaint only is good. The words are not actionable per se, and can be made so only on account of special damage having been sustained thereby, which must be suitably stated in the complaint. The second count is wanting or defective in this particular. Hence the defendant is correct in his position that evidence not material to support the first count was inadmissible. *Page 566
The first witness detailed several conversations with the defendant, in which he made use of observations reflecting upon the chastity of the plaintiff, but not in the words charged by the first count. The counsel for the plaintiff called for other conversations with the defendant. Counsel for the defendant objecting at this point that no evidence could be given under the second count, the court held that the plaintiff should not be confined to proof of the conversation on that occasion, and that she might prove other conversations charging her with being a public prostitute. The judge said, also, that he overruled the objection that the plaintiff could not give evidence under both counts. The defendant excepted.
The question in regard to giving evidence under both counts was not legitimately before the court, and the judge ought to have refused to pass upon it. There was no evidence at that time offered not applicable to the first count. In fact, the evidence which had been given was not material to any count, unless it might be received as tending to prove the animus of the defendant; and in that aspect it was equally applicable to the first count as to the second. The ruling in regard to the right to give evidence under the second count was an error, but as the question was not before the court at the time, the ruling and exception were merely speculative, having nothing to do with the case, and the error cannot, for that reason, produce any result here. The plaintiff could not be shut out from proving the material allegations of his complaint, because evidence had been given of some charges of the defendant which were not so offensive as those alleged. The court was right in holding that he should not be confined to the occasion of which the witness had been testifying. The plaintiff had still the right to prove his charge as stated in his first count.
The evidence of the repeated statement by the defendant of the want of chastity of the plaintiff, and the subjects of conversation when the statements were made, tended to prove that the defendant was actuated by an evil motive, or malice, *Page 567 as it is usually termed. If the character of the plaintiff for lewdness and incontinence with many men was settled, his son, who had been charged as the putative father of the plaintiff's child, might be exonerated and saved from an expensive charge. It was for the jury to consider whether the defendant had such a motive, or whether the slanderous imputation was made to excuse his son, among the members of his own family, from the charge of seducing and not marrying the plaintiff, and on that ground to be held as a privileged communication. For the same reasons the motion to strike out the evidence of this witness was properly denied.
It is also objected that none of the slanderous charges proven by this witness are contained in the first count of the complaint. The complaint alleges that the defendant stated of the plaintiff that she was a whore, a public whore, and that she had illicit intercourse and carnal intercourse with Joseph, etc. The witness testified, among several conversations had with the defendant, in which he made general charges implying a want of chastity by the plaintiff, that the defendant said "she has been whoring with one individual, and I can prove it." The witness said he could give the name of the person mentioned, but was not asked. This language was, in effect, substantially the same as that alleged in the complaint. It had the same meaning, and the character of the plaintiff was equally assailed by the one charge as the other.
It was not proven that this conversation transpired in the presence of, nor that it was reported to, the uncle of the plaintiff, with whom she resided, and who finally discarded her from his family, and refused her a home on account of these aspersions. This appears to have been the only pecuniary damage sustained by the plaintiff. Upon the authority of Keenholts v.Becker (3 Denio, 346), the action could not have been sustained upon the evidence of this witness, as to the slanderous charge, for the reason that it is supposed that it never reached the uncle, through whose action alone the plaintiff sustained any damage. I took *Page 568 occasion to say, in the case of Titus v. Summer (44 N.Y.R., 266-269), that I doubted the doctrine of Keenholts v. Becker (supra), in this respect: A slanderous charge gets in circulation and is many times repeated until it often becomes impossible to trace it so that it shall appear to have been carried directly from the slanderer to the person from whom the pecuniary injury has been sustained by the party complaining. The rule is entirely too favorable for the malicious slanderer. He should be held responsible when it can be proven, as in this case, that the slander uttered did come to the knowledge of some person, who acted upon it to the pecuniary injury of the plaintiff. The injury has been done, and it is quite too logical and exact to require the plaintiff to follow the devious channels by which it has reached the person from whom she finally received some pecuniary injury. The present case does not turn on that question, but it leaves the question of malicious intention the only ground for supporting the refusal to strike out the evidence of the first witness, or take it from the consideration of the jury.
The uncle, who turned the plaintiff out of his house, afterward testified that the defendant, in his hearing, called the plaintiff "a whore and a perfect prostitute, and had been for two years before," and that he named a person who, he said, could prove it. This evidence was quite enough to sustain the action.
The other subjects discussed, as to whether the communication was privileged, and whether she was turned away from her uncle's house by reason of the slanders uttered by the defendant, were questions for the jury, and have been passed upon by them adversely to the defendant; with their action we have no concern.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 569