
    Beach and wife vs. Ranney and wife.
    ' Where, in slander, the declaration in the same count set out words actionable per se, with others which were not so, concluding with an allegation of special damages ; to which the defendant pleaded not guilty: Held, that as he had been precluded from demurring, he might at the trial raise any question relating to the plaintiff’s right to maintain the suit for the words not actionable per se.
    
    In order to maintain an action of slander for words not actionable per se, the plaintiff must both allege and prove, that by reason of the words he has sustained some damage of a pecuniary nature.
    It is a sufficient compliance with this rule for the plaintiff to allege and prove, that in consequence of the speaking of the words he was prevented from receiving something of value—e. g. fuel, clothing, provisions, &c.,—which would else have been bestowed upon him gratuitously.
    Otherwise, however, if the injury consist of mere mental or bodily suffering, loss of society, or of the good opinion of the neighbors, &c.
    Accordingly, in an action by a female for words imputing want of chastity, an allegation of special damages showing, that the plaintiff had suffered pain of body and mind—that her neighbors shunned her—that she was turned out of the moral reform society, &c., was held not enough to maintain the action.
    
      A suit cannot be maintained for words not actionable per se, unless the special damages alleged be the natural and immediate consequence of the speaking of the words.
    Special damages resulting from the wrongful act of a third person, though the act be attributable to the speaking of the words, will not enable the plaintiff to maintain the action.
    An action cannot be maintained in the name of husband and wife, for words spoken of the latter, which are not actionable per se; the suit should be in the name of the husband alone.
    Otherwise, where the suit is for the speaking of words defamatory of the wife which arc actionable per se.
    
    The rule is the same, though the husband and wife live apart under a deed of separation.
    Slander for .works spoken by the wife of Ranney of the wife of Beach, tried before Gridley, C. Judge, at the Oneida circuit in October, 1840. The declaration contained three counts. The first and second counts each alleged the speaking of words actionable per se, as, calling Mrs. Beach a thief; and also words which were not actionable per se, as charging her with incontinence. Special damages were alleged in each of these counts as having accrued to the wife, viz. that she had suffered pain of mind and body—her husband had abandoned her—her neighbors refused to assist her as they had before been accustomed to do—one Smith rvho had been in the habit of assisting her to fuel, clothing and provisions, refused to do so any longer—and the like in relation to one Raymond—she had been turned out of the moral reform society—the children threw dirt, clubs, stones and other missiles into her house, and called her a strumpet, &c. The second count alleged that before, at and after the speaking of the words, the wife lived separate and apart from her husband under a deed of separation. The third count was for words actionable per se. Each of the counts concluded to the damage of the plaintiffs. The declaration is noticed more particularly in the opinion of the court. The plea was not guilty.
    On the trial, the counsel for the plaintiffs stated that he should not prove any of the words charged which were actionable per se; but proposed to prove those words which charged the wife with incontinence and which were only actionable upon proof of special damage. The defendants objected that for those words an action could not be maintained by the husband and wife jointly, although special damages should be proved: that special damages were not well laid in the declaration, or rather that the matters alleged did not constitute legal damages; but if special damages were well laid, the action should have been brought by the husband alone. The judge thereupon nonsuited the plaintiffs; and they now moved for a new trial on a bill of exceptions.
    
      C. P. Kirkland, for the plaintiffs.
    A female charged with incontinence may maintain an action, if special damage is the result of the slander ; and such damage need not necessarily be of a pecuniary character or any thing involving a pecuniary loss. (Williams v. Hill, 19 Wend. 305. Bradt v. Towsley, 13 id. 253. Olmsted v. Miller, 1 id. 506. Starkie on Slander, 166.)
    In this case there is no damage charged which is peculiar to the husband—the slander was uttered against the wife and the damage resulting from it is peculiar to her; she was therefore properly made a co-plaintiff with her husband who could not have sued alone. (1 Chit. PI. 7th Am. ed. p. 83.) The wife was the meritorious cause of action and the personal sufferer. The action would, therefore, survive to her; and in such cases it is well settled that she must join with her husband in bringing the suit. (Lewis v. Babcock, 18 John. 443. 1 Chit. PI. 7th Am. ed. p. 85. 5 Am. Com. Law, 575, 6. 2 Saund. PI. and Ev. 567, et seq. Morse v. Earl, 13 Wend. 271.) Moreover, the declaration avers that the husband and wife were living apart under a deed of separation; and it is submitted that the husband alone cannot maintain an action for injuries to the wife during such separation. (Clancy on Married Women, 436.)
    & Beardsley, for the defendants.
    Where words not actionable per se are spoken of the wife and special damages ensue, these result to the husband, and he alone can recover them by action in his own name. (Stark, on Slander, 251 to 260. 2 Kent’s Comm. 4th ed. p. 180. And see Nelthrop v. Anderson, 1 Salk. 114; 3 Bl. Comm. 140.) But if the rule were otherwise, the plaintiff was properly nonsuited in this case, for the reason that' the special damages alleged in the declaration were not of a pecuniary nature. Mere inability to work, mental or bodily pain and the like, do not constitute such special damage as will sustain an action. (Moore v. Meagher, 1 Taunt. 39. Hartly v. Herring, 8 T. R. 130. 2 Stark. Ev. 3d Am. ed. 871, 2. Barnes v. Bruddel, 1 Lev. 261; 1 Yentr. 4, S. C.) The decision of this court in Olmsted v. Miller, was expressly founded upon Moore v. Meagher and Hartly v. Herring; and the same may be said of Bradt v. Towsley, and Williams v. Hill.
    
    Special damages must be alleged and proved as the natural and immediate consequence of the slander. The declaration is insufficient in this respect. (2 Stark. Ev. 871, 3d Am. ed. 2 Phil. Ev. 189,248, 9, 7th ed. Hastings v. Palmer, 20 Wend. 225.)
   By the Court,%

Bronson, J.

As all of the counts alleged the speaking of words which are actionable per se, the defendants could not demur; and the question was well made on the trial, whether the action in its present form could be maintained for words which were only actionable on proof of special damage..

When the words charged are not actionable in themselves, the plaintiff must allege and prove that by reason of the slander he has sustained some pecuniary damage. \ It is not enough that he has suffered pain of mind, lost the society or good opinion of his neighbors, or the like," unless he has also been injured in his estate or property. It is enough, however, that the slander has prevented the party from receiving something of value which would otherwise have been conferred, though gratuitously. This question was debated in the Exchequer Chamber in Moore v. Meagher, (1 Taunt. 39,) which was an action on the case for defamation by words imputing incontinence to the plaintiff, who was a female. The declaration alleged that the plaintiff had before been received and entertained in the houses of her friends, and been found and provided by them with meat and drink gratuitously, to the great reduction of her necessary expenses of living and maintaining herself, and the great increase of her riches; and that by reason of the speaking of the words, she had lost all those valuable benefits, and been obliged to incur a much greater expense in her necessary living and support, to wit, the annual amount of £100. After verdict and judgment for the plaintiff, error was brought in the exchequer chamber; and it was urged that no legal damage was alleged. Sergeant Curwood said, if this action lies, no words are not actionable with the aid of an ingenious special pleader. But the judgment was affirmed. Mansfield, Ch. J. said there was special damage ; the words had deprived the plaintiff of an income derived from the bounty of others, which now, after verdict, we must assume would have sontinued if the words had not been spoken. • He said the case was not distinguishable from- Hartly v. Herring, (8 T. R. 130.) In that case the plaintiff was a dissenting minister, and in consequence of the slander he had been turned out of the chapel where he had before preached, and lost the gains and emoluments of his office. In both of these cases the plaintiff had suffered a pecuniary loss; and they go as far .in upholding the action on the ground of special damage as any of the decisions in the English courts.

In Bradt v. Towsley, (13 Wend. 253,) a female had been charged with being a prostitute, and the declaration alleged, among other things, that by reason of the speaking of ■ the words the plaintiff suffered and underwent great pain and anguish, and was hindered and prevented from transacting her necessary affairs and business, to her damage of $5000. This was held a sufficient allegation of special damage on the authority of Moore v. Meagher. Savage, Ch. J. said, “ she does not indeed allege, in terms, a pecuniary loss, but alleges that which must necessarily involve such loss.” In Olmsted v. Miller, (1 Wend. 506,) it was said that the proof of special damage was probably sufficient; but the decision turned on another point. In Williams v. Hill, (19 Wend. 305,) the plaintiff, who was an unmarried female, had, in consequence of the slander, been forbidden the house of her uncle where she had been a welcome visitor; and on the authority of Moore v. Meagher, this was held such legal damage as would sustain an action on a charge of incontinence.

None of the cases have gone further in sustaining the action on the ground of special damage than those I have mentioned; and they all proceed upon the assumption that the plaintiff had sustained some pecuniary loss in consequence of the slander.

Another rule in these actions is, that the damage must be the natural and immediate consequence of the speaking of the words. (Vicars v. Wilcocks, 8 Hast, 1. Ashley v. Harrison, 1 Esp. R. 48. Stark. on Stand. 168. 2 Phil. Ev. 249.) A man is not responsible for all the remote and possible consequences which may result from his act, although he may be a wrong-doer.

/ Applying these rules to the case in hand, I do not see now this action could be sustained, even if Mrs. Beach were a feme sole and was suing as such. The allegations /that she suffered pain of body and mind, that her neighbors 'shunned her, that she was turned out of the moral reform society, that her husband abandoned her and the like, do not show any pecuniary loss, or legal damage. The wrongful act of the children in throwing missiles into the house, and calling Mrs. Beach hard names, is quite too remote a consequence of the slander to be charged to the account of the defendants. It is like the hypothetical case put by Lord Ellenborough in Vicars v. Wilcocks, (8 East, 1,) where, in consequence of the words, persons assembled and seized and threw the plaintiff into a horse-pond by way of punishment for his supposed transgression. His lordship enquired, whether any case could be mentioned of an action of this sort sustained by proof of an injury occasioned by the tortious act of a third person. No case was mentioned ; and it was held that no action would lie where the special damage was, that a third person, in consequence of the words, had wrongfully discharged the plaintiff from his employment before his term of service had expired. The act of the employer was not the legal and natural consequence of the words spoken by the defendant.

But some damages are stated, which, if they were properly laid, and Mrs. Beach were a feme sole, would be sufficient to support the action. Persons who had before been accustomed to receive and provide for her gratuitously, refused after the slander to do so any longer until she should clear up her character ; and two persons in particular are mentioned who had withheld their former bounty. There is, however, a difficulty in relation to these averments. They are not put forward as the direct and immediate, but as a secondary consequence of the slander. The first thing that followed the speaking of the words was the abandonment of the wife by her husband, leaving her destitute ; and then Smith, after providing for her for a time, finally withheld his bounty; and Reynolds refused any longer to receive her as a welcome guest in his family. This objection applies only to the first count.

The second count is open to another objection. It alleges that, the wife for a long time before, and at, and after the time of the speaking of the words, lived apart from her husband under a deed of separation; and thereby she was obliged to maintain and support herself; and thereby she lost the benefit of the society and hospitality of her friends who had been in the habit of entertaining her gratuitously ; and thereby Smith finally withheld his assistance. The damages which the wife sustained are not alleged to have resulted from the speaking of the words; but from the fact that she lived apart from her husband under a deed of separation. The other averments in this count are, that the plaintiff was turned out of the moral reform society— that she was pained and enfeebled in mind and body—and that the children assailed her with missiles and opprobrious epithets ; which, as we have already seen, are not sufficient allegations of special damage. They either fail to show any pecuniary loss, or seek to charge the defendants with consequences which are too remote.

There is a further and a fatal difficulty in the case. The suit, as to the words not actionable per se, should have been brought by the husband alone. When words spoken of the wife are actionable of themselves, or when the wife suffers any other injury, as a battery or imprisonment, she must join with her husband in seeking legal redress. The declaration concludes to the damage of both, for'the action survives to the wife if the husband die before the damages are recovered. But when words spoken of the wife, are only actionable on proof of special damage, the husband must sue alone. (Stark, on Slander, 151, 159, 60. Coleman et ux. v. Harecourt, 1 Lev. 140. 1 Chit. Pl. 83,4, ed. ’37. And see Lewis v. Babcock, 18 John. R. 443; Russell et ux. v. Come, 1 Salk. 119, and note (b), Evans' ed. ; 2 Kent, 180, 4th ed.) Legal damages, to support the action, must be such as result to the husband, and they should be so laid in declaring. He is bound by law to provide support and maintenance for the wife; and if she is deprived of the gratuitous aid of friends in consequence of the slander, the damage, in a legal point of view, results to the husband.

The fact that the plaintiffs lived apart under a deed of separation Cannot, I think, affect the question. The husband was still bound to provide for the wife; and what she lost in the way of support in consequence of the slander, was in judgment of law the loss of the husband.

New trial denied.  