Opinion
March 6, 1906.
May 15, 1906.
Present: KNOWLTON, C.J., MORTON, LATHROP, LORING, BRALEY, JJ.
A declaration for speaking slanderous words concerning the plaintiff in a foreign language must set out the words as spoken in the foreign language and also their meaning in English, and the plaintiff must prove as a necessary part of his case that the translation of the foreign words in his declaration is correct.
W. Flaherty, for the plaintiff.
C.P. Greenough J.A. Blanchard, for the defendant.
This is an action of tort for slanderous words alleged to have been spoken by the defendant concerning the plaintiff. The original declaration was in the English language. During the trial it appeared that the words spoken were in the Italian language, and the counsel for the plaintiff stated that the alleged slanderous words had been spoken in Italian, and that he did not contend that they were spoken in English. The judge then suggested that, if that were so, there was a variance between the allegations and the proof. The plaintiff asked for leave to amend by setting forth the words spoken in Italian, and the judge intimating that such amendment would be permitted, the trial proceeded as before through an interpreter. At the close of the evidence for the plaintiff an amended declaration was filed setting forth the words spoken in Italian, with their meaning in English. The plaintiff then rested. The counsel for the defendant then asked the judge to rule that there was no evidence that the foreign words set forth in the amended declaration were spoken by the defendant, and, further, that there was no evidence as to the meaning of such foreign words, and requested the judge to rule that the action could not be maintained. The judge so ruled. A verdict was accordingly returned for the defendant; and the case is before us on the plaintiff's exception to this ruling.
1. There is no doubt that when libellous words are written in a foreign language they should be set out in that language, and a translation given. Zenobio v. Axtell, 6 T.R. 162, per Lord Kenyon, C.J. The same rule applies in cases of slander. Rahauser v. Barth, 3 Watts, 28. Lettman v. Ritz, 3 Sandf. 734. Zeig v. Ort, 3 Chandl. (Wis.) 26. Kerschbaugher v. Slusser, 12 Ind. 453. Wormouth v. Cramer, 3 Wend. 394. Keenholts v. Becker, 3 Denio, 346.
2. It is also necessary to prove that the translation of the foreign words in the declaration is correct. Hickley v. Grosjean, 6 Blackf. 351. Noeninger v. Vogt, 88 Mo. 589. Odgers, Libel and Slander, (4th ed.) 119, 120. Townshend, Slander and Libel, (4th ed.) § 330. Newell, Slander and Libel, (2d ed.) 760. Folkard, Slander and Libel, (6th ed.) 471, 804.
As there was no attempt to do this in the case at bar, the ruling of the judge below was right.
Exceptions overruled.