Brooker v. Coffin

5 Johns. 188

• Court: New York Supreme Court
• Decided: November 15, 1809
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The first count is for these words, “ she is a common prostitute, and I can prove itand the question arises,, whether speaking these words gives an action, without alleging special damages. By the statute (l R. L. 124.) common prostitutes are adjudged disorderly persons, and are liable to commitment, by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labour for a period not exceeding 60 days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common prostitute, was charging her with such an offence as would give an action for the-slander. The same statute which authorises the infliction of imprisonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pretending to h£.ve skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases : In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or suhj ect him to an infamous punishment, then the words will be in themselves actionable j and Baron Gatnytis considers the test to be, whether the crime is indictable or not. (1 Com. tit. Action on the case for Defamation, F. 20.) There is not, perhaps, so much uncertainty in the law upon any subject, as when words shall be in themselves actionable. From the contradiction of cases, and the un», certainty prevailing on this head, the court think they may, without overleaping the, bounds of their duty, lay down a rule which will conduce to certainty, and they therefore adopt the rule I have mentioned as the criterion. In our opinion, therefore, the first count in the declaration is defective.

The second count is for saying of the plaintiff, “ she was hired to swear the child on me, she has had a child before this when she went to Canada ; she would come d—d near going to the state prison.” These words are laid as spoken at one time ; if, then, any of them are actionable, it is sufficient. The innuendoes enlarge their meaning, and are not justified. One of them avers, that the defendant meant that the plaintiff was hired, falsely and maliciously to swear the child on the defendant ; and another innuendo, in explaining the words, “ she would come damn’d near going to state prison,” alleges, that the defendant meant that the plaintiff was guilty of such enormous crimes as would, if punished according to the laws, &c. condemn her to infamous punishment in the state prison. Now I do not perceive, that the charge at all warrants the inference that the plaintiff had been guilty of perjury; and the cases of Hopkins v. Bundle, (l Caines, 347.) Stafford v. Green, (1 Johns. Rep. 505.) and Ward v. Clark, (2 Johns. Rep. 11.) are authorities against sustaining this count.

The defendant must, therefore, have judgment.