Davis v. Sladden

17 Or. 259

• Court: Oregon Supreme Court
• Decided: January 15, 1889
• Status: Published

Opinions

Lord, J.

This is an action for slander. The complaint alleges that the defendant, in the presence and hearing of L. B. ltossman and other persons, falsely and maliciously spoke of and concerning plaintiff as follows: “Fenton sent those two prostitutes to talk with my -wife ” (meaning this plaintiff and her mother). And at the same time and place, as follows: “Do you think more of the little fee you -will get-out of these low, disreputable "people [meaning the plaintiff] than you do of the friendship of my wife.” And as follows: “If you bring my wife into court against this'prostitute [meaning the plaintiff], she nor none of our family will ever speak to you again”; aud “my wife would not .have that prostitute on her land [meaning by‘that prostitute’■ the plaintiff]/not for any money. All'the neighbors are complaining about'it now. You reside in that neighborhood yourself, and cannot afford to have such people'there.” That,.at the time of uttering said words by the defendant, the plaintiff was and now is a,married woman, and has. a.husband living, and has ever borne a good name and Character above reproach, etc.

The complaint does not allege special damages resulting from-the-speaking of the words by the .defendant, and the only question raised'is: Are the words charged actionable per se ?

The distinction early taken in the law between words ■actionable 'and words not actionable in themselves is, that in the former the law adjudges them to be injuries, though no special loss can be, proved, while in the latter, in addition to the words, it was necessary for the plaintiff to allege and prove special damages. The more difficult and vexed question, however, has been to determine what words were actionable per se.

It was said by Spence, J., that “there is not, perhaps, upon any subject so much uncertainty in the law as when words shall be in themselves actionable.” (Brooker v. Coffin, 5 Johns. 192.) And it may have been for some such reason that Holt, C. J., more than a century before, was led to say that “ it was not worth while to be learned on the subject.”

At common law, there was no r<yiteoEU /or defamatory words, unless they imputed, a crime, or related to a man's trade or profession, oyeaused some special damages. It mattered not that i'Me words spoken involved an attack on personal chaructor, or how gross the immorality or moral delinquency imputed, by them, unless they charged a crime, such/words were only actionable-when special damage endued. The rule as laid down by Starkie is, that “nq/charge upon the plaintiff, however foul, will be actionable, unless it be an offense punishable- in a temporal/ court of criminal jurisdiction.” (1 Starkie on Slander, 21.) Except when applied to a person in his e/llng or the conduct of his business, as to say of a man Ii/t- is a “cheat” or a “swindler” (Chase v. Whitlock, 3 Hill 138; Wererbach v. Trone, 2 Watts & S. 408; Osborne v. Bacon, 6 Cush. 185), or a “damned rogue” (Oakley v. Farrington, 1 Johns. Cas. 129; Caldwell v. Abbey, Hardin, 529), or a “scoundrel” or “blackleg” (Tassel v. Capron, 1 Denio, 250; Stevenson v. Hayden, 2 Mass. 409; Ford v. Johnson, 21 Ga. 399; Artietta v. Artietta, 15 La. Ann. 48), is not actionable. “ Nor were words imputing to a female adultery or fornication, or a. want of chastity in any form, acv-ionable, unless special damage ensues and is shown. (Gascoigne v. Ambler, 2 Ld. Raym. 1004; Graves v. Blanchard, 2 Salk. 695; 5 Hurl. & N. 534; Wilby v. Elston, 65 Com. L. 141; Brooker v. Coffin, 5 Johns. 188; Breys v. Gillespie, 2 Johns. 115; Stout v. Wood, 1 Blackf. 71; Elliott v. Adesbury, 2 Bibb, 473; Beach v. Rauney, 2 Hill, 309; Woodbury v. Thompson, 3 N. H. 194; 1 Starkie on Slander, 166; Towns end on Slander and Libel, sec. 372.)

Except in London and some other particular places, it is the settled law of England that to charge a woman with incontinence or adultery is not actionable at common law, unless special damage is alleged and proved. So discreditable was the state of the law in that country in making it so diJSeunf for a female to obtain redress for slanders on her moral character, that Lord Brougham was induced to say: “I may lambent the unsatisfactory state of our law, according to whichs the imputation by words however gross, on an occasions however public, upon the chastity of a modest matron or'a pure virgin is not actionable without proof that it has acteally produced special temporal damage to her; but I am Hiere only to declare the law.” (Lynch v. Knight, 9 H. L. Cas. 592.) The reason of this principle is ascribed to the fa'nt that originally the remedy for common bad language was in the ecclesiastical courts. \

Defamation was a common subject for spiritual cansures, and Mr. Justice Stephen says: “And the fact that it was so explains the rule of the common law that no action lies for words spoken, unless they impute a crime' or relate to a man’s profession or trade, or cause special damage.” (2 Stephen’s History of the Criminal Law of England, 409.)

In Palmer v. Thorpe, 2 Coke, part 4, p. 20, it is said: “ Touching defamations determinable in the ecclesiastical court, it was resolved that such defamations ought to have three incidents: 1. That it concerns matters merely spiritual and determinable in the ecclesiastical court, as for calling him “heretic, schismatic, adulterer, fornicator,” etc.

The application of this principle is well illustrated in Byron v. Eames, 12 Mod. 106, in an action on the case fori saying a woman had a bastard, etc., where it was moved in arrest of judgment that the words are not actionable, because they are of spiritual connusance, and no temporal loss accrues, and the court say: “These words are most scandalous of a young woman, so that were it res nova perhaps an action would lie; but there are many authorities to the contrary. It is a crime of which the ecclesiastical court has connusance; and it is not reasonable that the party should be liable to defamation and an action too.” As a consequence, to avoid punishing a party twice for the same words, the temporal courts held that such words were not actionable per se.

Adultery, then, being a spiritual offense, cognizable only in the ecclesiastical courts, and the punishment being confined to the infliction of penance pro salute animse, it resulted that to charge a married woman with adultery was not actionable per se, and that no redress could be obtained therefor at common law, without special damage ensues, which must be alleged and proved. And this is the law, with few exceptions, in the several states in which the common law prevails in this country, where such offenses as adultery and fornication have not been made indictable by statute. It must, then, be the law in this state, unless, by force of legislative sanction, the words alleged impute a crime involving moral turpitude.

Tested, therefore, by the common Taw, the words alleged are not actionable per se, and as no special damage is alleged, no case is stated. But as the offense of adultery is now made by our criminal code an indictable felony, a punishable offense involving moral turpitude, the inquiry now is, Do the words spoken and alleged necessarily and by reasonable intendment charge the defendant with the crime of adultery? For if they do, the words are actionable per se, and a case is stated, though no special damage is alleged.- By reference to the complaint, it will be seen that' the word forming the gist of the action is the word “prostitute” several times repeated and applied to the plaintiff. If the word “prostitute,” as thus applied to the plaintiff, implies the crime of adultery, then the word is actionable per se, and no special damage need to be shown in order' to maintain the action. What, then, are the acts or' practices of a female which constitute her a prostitute? Undoubtedly, as ordinarily understood and applied by mankind, they are' such acts or practices as consist in common lewdness of the female or in an'indiscriminate intercourse with men for hire. A prostitute, therefore, is a female given to promiscuous sexual intercourse for the sake of gain. This is the definition of the books.

Said Appleton, C. J.: “A prostitute is a female given to indiscriminate lewdness for gain; it is the practice of a female offering her body to an indiscriminate intercourse with men.” (State v. Stoyall, 54 Me. 27; Carpenter v. People, 3 Barb. 603; Commonwealth v. Cook, 12 Met. 93; State v. Ruble, 8 Iowa, 453; Osborn v. State, 52 Ind. 528; Fanhestock v. State, 102 Ind. 163; Sheehey v. Cokley, 43 Iowa, 185.)

When, then, the word “prostitute” is applied to a woman, it is meant that she is given- to the practice of offering her body to promiscuous intercourse with men for gain. Adultery may be committed by one act of illicit intercou-ráe, but the female to whom the word “prostitute” can be applied has only gained that character by a lohg continuance in the vice of lewdness. It necessarily denotes one who, if married, has committed numerous adulteries, and, under our code, rendered herself liable to indictment and criminal punishment.

As a married woman, the plaintiff could not be a prostitute without having committed repeated adulteries. Such is the direct and legal consequences of the illicit acts which make up the character of a prostitute when the woman is married. To say of a married woman that she is a “prostitute” is necessarily to impute to her the guilt of adultery, and as under our law adultery is indictable and punishable, such words charge a crime and are actionable per se. Such has been the holding in the several states which have statutes making adultery a punishable offense, and the decisions have gone on the ground that such charge, if true, rendered her liable to punishment under such statutes.

In Klewin v. Bauman, 53 Wis. 244, it was held that words accusing a married woman of being a prostitute are actionable per se. So in Rancher v. Goodrich, 17 Miss. 82, words accusing a married woman with being a whore were held actionable per se. (See also Sheehey v. Cokley, 43 Iowa, 185; Pledger v. Hathcock, 1 Ga. 551.) In short, where adultery or fornication is made indictable by statute, words imputing that a person has been guilty of such an offense are actionable in themselves. (Stiber v. Wynal, 19 Mo. 513; Miller v. Parrish, 8 Pick. 385; Truman v. Taylor, 4 Iowa, 424; Baudership v. Roe, 23 Pa. St. 82; Buford v. Wible, 32 Pa. St. 95; Spencer v. McMasters, 16 Ill. 405; Moberly v. Preston, 8 Mo. 462; Nelson v. Barnet, 45 Ind. 163; Symmonds v. Carter, 32 N. H. 458; Strobet v. Whitney, 31 Minn. 384; Klewin v. Bauman, 53 Wis. 244; Odgers on Libel and Slander, 84, and note.) It is no longer the rule that the words alleged to be slanderous are to be construed in mitiori sensu, but they are to be taken in their ordinary sense, as they would naturally be understood by those to whom they were addressed.

If the words fairly import the charge of a crime, and would be so understood by mankind, the injury is inflicted on the character of the plaintiff as completely and fully as if the crime had been imputed. (Woodworth v. Meadows, 5 East, 463; Walton v. Singleton, 7 Serg. & R. 450; Demarest v. Haring, 6 Cow. 76; Duncan v. Brown, 15 B. Mon. 136; Dixon v. Stewart, 33 Iowa, 125; Butterfield v. Buffon, 9 N. H. 156; Hancock v. Stephens, 11 Humph. 507.)

“ If you bring my wife into court against this prostitute [meaning the plaintiff], she nor none of our family will ever speak to you again”; “My wife would not have that prostitute on her land, not for any money”; “All the neighbors are complaining about it; you reside in that neighborhood yourself, and cannot afford to have such people there,” etc; — the plain and obvious import of this language was to impute to the plaintiff the guilt of repeated adultery. No one could hear such language uttered without understanding from it that the defendant intended to charge the plaimtiff with promiscuous or illicit intercourse with men for gain. Indeed, according to its natural import, such was the activity and notoriety with which the plaintiff was plying the lewd and indiscriminate practices of the prostitute that “all the neighbors were talking about it.” No phraseology could have been used which would have conveyed to the mind more plainly or explicitly her want of chastity, and her guilt of adultery, if the words used were true, as before stated.

Words are actionable in themselves, either at common law or by the statute, where an offense is imputed by them for which the party is liable to indictment and punishment. In this state the breach of chastity, whether by adultery or lewd cohabitation, is punishable by statute (Code, secs. 1858, 1862); and as the words used impute a crime involving moral turpitude, and punishable by the statute, they are actionable per se, and special damage need not be alleged to maintain the action.

It may be true, as suggested by counsel, that the case presents some harsh features, but we must apply the law as we find it, or make a bad precedent, because the case is a hard one. As to the other error alleged upon which the appeal is based, the argument did not indicate much reliance was placed in it, the instructions asked seems inconsistent with the language charged and found to be true. However, if counsel desire it, we will hear further argument upon that point. But as the case now stands, we must affirm the judgment.