
    
      J. J. Tompkins vs. F. H. Wisener.
    1. Slander. Evidence. Opinions of witnesses. In an action of slander where the declaration by proper averments, states the existence of certain extrinsic matter to explain the meaning and application of the words spoken and show their defamatory character, snch averments being substantive allegations of fact, must be proved, and in such case it is competent when the woi'ds are proven, to admit as evidence to the jury the understanding of witnesses, familiar with such extrinsic facts, in whose presence the words were uttered, as to their application. Vide 1 Starhie on Slander, 44. 2 lb., 320.
    2. Same. Same. Mere inference of witness as to application of words. The mere general opinion of a witness derived from reading a libel, or hearing the words spoken, unaided by any circumstances within his knowledge, or accompanying the act, is not competent evidence. But his understanding as to the meaning of the words, and their application to the plaintiff when founded on facts previously known to him, and detailed by him as the foundation of such understanding, is not subject to just exception, and is competent to go to the jury, who may adopt or reject it as in their judgment it is well or ill-founded.
    3. Same. Same. Illustration of the rule. In actions of slander, it is the sense and application of the words spoken, as understood by the hearers, which caused the damage and constitutes the very gist of the action. So, where the words spoken were, “ there goes the grocery keeper who stole my money,” and the witness saw no one passing at the moment except the plaintiff, and was aware (as he stated,) of a difficulty which some time before occurred between the plaintiff and defendant, in which the plaintiff, who had kept grocery for the defendant, was charged by him with embezzling his money, it was competent to allow said witness to state his opinion as to the application of the words.
    4. Same. Same. Imputation of crime by inuendo. It is not absolutely essential in order to ground an action of slander, that the defamatory words should carry on their face an open and direct imputation of crime, as the nature of the imputation may, from extrinsic matter, he perfectly well understood by the hearers acquainted with the persons and circumstances.
    EROM OVERTON.
    The defendant in error brought this action of slander against the plaintiff in error in the circuit court of Overton. The words spoken were, “there goes the grocery keeper that stole my money.” The witness who heard the words uttered, was asked his opinion as to whom the words referred. This was objected to, but the court, Judge Goodall presiding, overruled the objection, ‘ and permitted the question to be answered. The witness stated that “at the moment the words were spoken he had no opinion, but on looking around he saw no one passing but Wisener, and recollecting a difficulty which occurred about one year before between the- parties, in which Tompkins charged "Wisener, who had kept his grocery, with receiving money, and not accounting therefor, he supposed the words were intended to mean "Wisener. This extrinsic fact had also appeared in proof, before the witness was interrogated as to his opinion. The declaration contains four counts, variously charging the words spoken, but containing no averment as to the existence of the extrinsic matter referred to as the foundation of the witnesses opinion. There was verdict and judgment for $10Q for the plaintiff below, and the defendant’s motion in arrest and for a new trial being made and overruled, he appealed in error to this court.
    Goodpasture and Beien for "Wisener.
    Gardenhiee and Jones for Tompkins.
   McKinney, J.,

delivered the opinion of the court.

This was an action of slander. Yerdict and judgment were for the plaintiff, and an appeal in error to this court. The words alleged in the declaration, and proved to Lave been spoken, are, “there goes the grocery keeper that stole my money.” In uttering these words, the defendant mentioned no name, nor did he in terms refer to any particular person. Circumstances detailed in the evidence are relied upon, however, to show that the plaintiff was the person meant. A witness present at the time the words were spoken states that immediately afterwards he looked around and saw the plaintiff crossing the public square, about twenty or thirty feet from where defendant and witness- were standing, and that he did not see any one else about or passing. It was also proved that about a year before the speaking of the words, the plaintiff was employed in keeping the defendant’s grocery; that they had had some difference, and defendant had charged that the plaintiff had used his money while keeping the grocery, and had not accounted for it. The plaintiff’s counsel in the examination of one of plaintiff’s witnesses, en-quired of him “ who he understood him (the defendant,) to mean,” as the person charged with stealing the money. This question was objected to, but the objection being overruled, the witness in substance stated, that at the time the words were first spoken, “he had no opinion” on the subject, but after some reflection, and calling up the circumstances before referred to, he “ thought it was plaintiff defendant meant.” This question and answer constitute the ground of error relied upon in the argument here.

It is certainly true that the slanderous words spoken must be shown to have an individual application to the plaintiff, and that he was the person intended to' bo designated. It is not absolutely essential, however, that in order to ground an action for slander, the defamatory words should carry on their face an open and direct imputation of crime, or that 'they should designate by name the person at whom they are pointed; for as has been justly remarked, calumny may be as effectually conveyed in artful allusions to collateral matter and oblique insinuations, as by • the most explicit assertions; and though a fictitious name be used, or the name be altogether omitted, the application of the words, both as respects the nature of the imputation and the person intended, may from extrinsic matter, be perfectly well understood by the hearers acquainted with the persons and circumstances. Starkie on Slander, (ed. of 1852,) vol. 1, 44; vol. 2, 320, marg. “In. such case, the plaintiff, by proper averments in the declaration, as has been done in the present case, must state the existence of such extrinsic matter as will explain the meaning of the words, show • their defamatory character, and their application to the plaintiff.” “It is competent to aver that the words were uttered with intent to convey a particular meaning, that they were intended to apply to the plaintiff, and that they were so understood by the persons in whose presence they were spoken.” “And these averments being substantial allegations of facts, must be proved., 5 East, 463-470. 5 Barn. & Adol., 27, and are questions to be decided by the jury. Starkie on Slander, vol. 2, 51.”

Having stated these general principles, we come to the question whether, if the defendant does not at the time of speaking the words, directly apply them to the plaintiff by name, it is competent to admit as evidence to the jury the understanding of witnesses in whose presence they were uttered, as to their application?

Upon this question the authorities appear to differ. According to some of the cases, both English and American, it would seem that in support of the averments of the declaration in respect to the meaning of the words, or of their application to the plaintiff, the opinion or belief of a witness cannot he admitted; that the witness can only be allowed to state facts, from which the jury, under the direction of the court, will deduce the proper conclusions for themselves.

But it is laid down on the other hand (Starkie on Slander, vol. 2, 51,) that the libel or words spoken, being proved, their application to the plaintiff and the extrinsic matters alleged in the declaration may be shown by the testimony of witnesses who know the parties, and circumstances, and who can state their judgment and opinion on the application and meaning of the terms used by the defendant as alleged in -the declaration.” Again at page 321, marg., it is said that where the intention as to the application of a libel, is “ doubtful and ambiguous, from the defendant having left blanks for the name, or from his having given merely the initials, or having introduced fictitious names, it is a question for the opinion and judgment of the jury, whether the prosecutor was the party really aimed at. For this purpose the judgment and opinion of witnesses who from their knowledge of the parties and circumstances, are able to form a conclusion as to the defendant’s intention and application of the libel, is evidence for the information of the jury.”

There is certainly much force in the objection, that the mere general opinion or understanding of a witness derived from simply reading a libel, or hearing the words uttered, unaided by any circumstances within his knowledge, or accompanying the act, ought not to be received as evidence to the jury; for this might be in effect to make the result depend, not upon the proper inferences to be drawn in view of all the circumstances, but possibly upon the mistaken deductions of the witness. But the understanding of a witness as to the meaning of words, or of their application to the plaintiff, derived from accompanying circumstances, or facts previously known to him, and detailed by him as to the ground of such understanding, we think, is subject to no just exception. Of course, the correctness of his conclusions is a matter for the consideration of the jury,' and they will adopt or reject them, as in their own judgment they may be well or ill-founded. From the very nature of the case, witnesses must be permitted, under proper qualifications, to state their understanding and conclusion, as well in regard to the sense in which the words were used as to their- application ; for it is the sense and application of the words, as understood lyy the hearers, which caused the damage, and constituted the very gist of the action.

From this view it results, that there is no error in the record, and the judgment is affirmed.  