#### Frederick H. Herhold v. Albert L. White.

Gen. No. 11,119.

1. Slander—what words actionable, without innuendo. The words, “ he (meaning the plaintiff) is and has been behind bars,” are slanderous and actionable of themselves without any innuendo, and the statement of an innuendo with respect thereto does not change the legal effect of their use.

2. Videlicet—effect of allegation under. Where it is alleged under a videlicet that slanderous words were spoken at a particular place, it is not essential to a recovery that proof be made that such words were, in fact, spoken at such place; it is sufficient if the speaking of the words be established at any place.

Action on the case for slander. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

Affirmed.

Opinion filed May 17, 1904.

Donald L. Morrill, for appellant.

Henry W. Leman, for appellee.

Mr. Justice Baker

delivered the opinion of the court.

This was an action for slander in which plaintiff had a verdict for $800, remitted therefrom $400, had judgment for $400, and the defendant appealed.

The words charged in the second count of the declaration were, “ he (meaning the plaintiff) is and has been behind bars.” It is contended that these words are not actionable. In Webb v. Beavan, 11 Q. B. D. 609, it was said : “ The distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but it is slanderous to say that he has done something for which he can be made to suffer corporally.”

Words are to be construed “ according to their common acceptation,” “ in the sense in which hearers of common and reasonable understanding would ascribe to them.” In our opinion to say of a man that he “ has been behind bars ” must be held to mean and charge that he has done *187something for which he has been punished by imprisonment, and to say of him that “ he is behind the bars ” must be held to mean and charge that he has done something for which he is now suffering punishment by imprisonment, and either set of words is therefore slanderous and actionable of themselves without an innuendo. The innuendo stated, that defendant thereby meant to state and charge “ that the plaintiff was incarcerated in a jail or prison and deprived of his liberty upon some criminal charge or by indictment and conviction” is a mere statement of a legal conclusion and is but surplusage.

It was charged in the first count of the declaration, and there was evidence tending to prove, that the defendant also said of the plaintiff, that he “ went under an assumed name in Chicago, and passed himself off for a single man,” and the court submitted to the jury the question, whether the defendant “ was guilty of speaking the slanderous words charged in the declaration.” In this the court erred. The words charged in the first count are not actionable, and the case should have been submitted to the jury upon the issue joined on the second count only; but in our opinion such error could have worked the defendant no harm, and is therefore not a sufficient ground for the reversal of the judgment.

It is further contended that the verdict is against the evidence. The declaration charged, under a videlicet. that the words were spoken at Detroit, and - it is contended that the great preponderance of the evidence is that the defendant was in Chicago on the day the witness testified that he spoke the words in Detroit, and so could not have spoken the words. Only one witness testified to the speaking of the words at Detroit, but another witness testified that about the time charged in the declaration he heard the defendant say at Chicago that the plaintiff “ at some time or other has been behind the bars for a criminal offense,” and a third testified that he heard the defendant at Chicago say that “ he had gotten a letter with information that Mr. White (the plaintiff) had been.behind bars.”

*188The court, at the request of defendant, instructed the jury that the plaintiff could not recover unless the words charged “ were spoken at Detroit, Michigan, as alleged in the plaintiff’s declaration.” This instruction should not have been given. Actions for libel and slapder are transitory actions. The words in the declaration “ at, to wit, the city of Detroit,” are to be considered as laying a-venue and not a description of the place, and it was not necessary for the plaintiff to prove that the cause of action arose where the venue was laid. Hurley v. Marsh, 1 Scam. 328.

Whether if the evidence of one witness, that the words charged were spoken by the defendant at Detroit, was the only evidence to prove the speaking of the words, the verdict should be held to be against the evidence, is a question not before us. It is sufficient to say that upon all the evidence we cannot say that the verdict is against the evidence, nor can we say that the damages are excessive.

Finding in the record no reversible error, the judgment of the Superior Court will be affirmed.

Affirmed,