Miller v. Holstein

Bullard, J.

The members of the court do not appear to differ materially upon any part of this case, except as to the propriety of the last part of the charge given to the jury, to wit: “ that the words are to be understood in their common *404popular meaning, and if they charged the .plaintiff falsely an(j maliciously with moral turpitude, so as to injure his character and standing in society, they might find for the plaintiff, without showing any special damage.”

The courts in Louisiana, are not bound by the artificio! rules of of6 slander" 'but where our law is resort to^afin^ anil/consonant to reason and the court to ”adopTpathe common law tween words acséTvesand words which are not so; and to say a plaintiff is recoverin'anaction of slander, unless charged with an indictawithout prooTof special damages,

If this part of the charge were to be tested by the common law, it is probable it would be found inaccurate and loose. None of us suppose that we are bound by the technical and artificial rules of the common law of slander, but when our , law is silent, it is supposed that we may resort to a foreign system for a rule, if that rule be consonant to reason and e(lu’fy> I ara by n0 meaas prepared to adopt from the common law the distinction between words which are actionable in themselves, and words which are not; and to say that a pHintiff is not entitled to' recover in an action of slander, unless charged with an indictable offence without proof of special damages. In the present case, the latter part of the judge’s charge was perhaps uncalled for, because the words alleged to have been uttered, might well be found by the jury to amount in a popular sense to a charge of perjury, an mdicta^e °ffencej and, consequently, it was not important to inquire what would be the law of the case if the charge had ° only amounted to one of moral turpitude. And yet it may be said that, under the charge of the court, the jury might go beyond the inquiry, whether the words in a popular sense J 1 J , r * imported a charge of an indictable offence, and say that they a<- least imputed great moral turpitude, for it cannot be ¿[oukte(j but that it is highly immoral to swear falseljq even in an affidavit, not connected with any judicial proceedings. I am disposed, therefore, to look at the charge in that point of view, and while we all agree that the judge acted correctly in refusing to charge in the main as prayed by the defendant’s counsel, my opinion is, that he did not 'err in charging as above stated. I'concur with the judge of the District Court in his view of the law. I should, however, be disposed to reconsider my opinion, if upon inquiry I should be satisfied that this court in its previous decisions, had sanctioned a contrary doctrine. But it does not appear to me to have done so, either expressly, on a point directly before it, or by necessary iinpli*405cation. The case of Wamack vs. Kemp, is perhaps the strongest; but it does not appear to me, that the point now under consideration was made or decided expressly. In that of Stewart vs. Carlin, the court held, that when the charge was of perjury, the plaintiff might recover without showing special damages, but the court did not say that there might not be cases in which the plaintiff could recover, when the accusation conveyed only a charge of moral turpitude, injurious to his reputation and standing in society.

sla¿ dermaybemainproving damages ,Ü!LeF.arty

I am of opinion, therefore, that the judgment first pronounced, remain undisturbed.