Golderman v. Stearns

73 Mass. 181

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Metcalf, J.

The charge against the plaintiff of his having the venereal disease is held to be actionable for the same reason that a charge of his having the leprosy or the plague would be; not because the charge imputes any legal or moral offence, but solely because it tends to exclude him from society as a person having a disgusting and contagious disease. Hence it is, that to charge one with having had the disease is not actionable; such charge not tending to exclude him from society as a person with whom it is unsafe to associate. March on Slander, (ed. of 1674,) 77, 78. Crittal v. Horner, Hob. 219. Bloodworth v. Gray, 8 Scott N. R. 11. Carslake v. Mapledoram, 2 T. R. 473. 3 Bl. Com. 123, note by Christian. 2 Dane Ab. 568.

The jury having found that the plaintiff, when the charge against him was made, had the venereal disease, there remains no ground on which this action can be maintained; for the truth of the charge is a justification.

Doubtless such a charge as the plaintiff complains of may be accompanied with words that necessarily impute adultery or fornication, either of which is an offence punishable by the laws of this commonwealth. In such a case, the charge would be actionable. But, in the present case, the words which were added to the charge of the plaintiff’s having the disease did not impute any punishable offence. They only asserted that the plaintiff, while a widower, was diseased, and, after his marriage to his present wife, communicated the disease to her. The allegation, that he was “ the guilty one,” means that the disease was communicated by him to her, and not by her to him. It does not import that he contracted the disease guiltily; that is, by committing adultery or fornication. Nor does the plaintiff’s declaration aver that any punishable offence is imputed to him bv the words spoken. Judgment on the verdict.