Moore, J.
It is an undeniable proposition, that at common law the husband is á necessary party in an action for slander by the wife, as well as other torts. (1 Chit., Pl. 92; 2 Kent., 149; Hanks and wife v. Harman and wife, 5 Binn., 43.) And it has been held that he may be sued alone in such case. (Hasbrouck v. Weaver, 10 John., 247.) It is insisted, however, that the common law doctrine upon this subject, is abrogated in this State by our statutes regulating marital rights. With us the separate identity of the wife, with respect to her property, is not merged in the husband. Her property is not vested in him by marriage. But the common law rule holding the husband responsible for the wife’s -torts, does not rest entirely upon the ground that he takes by marriage all of her personal property, and that she is presumed to have no separate estate. It rests perhaps mainly upon the supposition that her acts are the result of the superior will and influence of the husband. Owing to the intimate relation between husband and wife, and to the nature of the control given him by law and social usage, over her conduct and actions, it would be difficult, if not impossible, for the courts to determine when she had acted at her own instance, and when she was guided by his dictation. While our statutes are framed with the view of securing to the wife her separate property, and of sedulously protecting her With reference to it, against the recognized and controlling influence of the husband over her conduct, it would be a stretch of judicial authority to hold, that the common law responsibility attaching to Mm for the acts of the wife, is by mere implication abolished. We see therefore, no objection to the prayer of the [468]*468petition for a general judgment, and think the general demurrer was properly overruled. Whether the judgment in such cases should not be so framed as to require, in the first instance, satisfaction from her separate estate, or the community property, before resorting to the separate property of the husband, as no exception has been taken to the form of the judgment, need not at present be discussed.
It is insisted by appellees, that this court should declare that words charging a female with lewdness, are actionable by the common law of this State. That this should be the law, we entertain no question. It is a matter of regret and surprise, that this blot upon the common law should have been suffered by legislative authority, to remain so long a stigma upon our jurisprudence. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than when a female is charged with incontinence; and therefore, in no other should the plaintiff be better entitled, in reason and good sense, to the benefit of that presumption. Yet while the criminal code has reduced deliberate homicide in revenge for insulting words towards a female relation of the party guilty of the homicide, from murder to manslaughter, for this species of slander, than which none can be more cruel and malicious in its origin, or more pernicious in its consequences, unless some specific damages can, be proved, the party whose peace of mind is destroyed, and whose prospects in life are ruined, can by any appeal to the courts of the country obtain neither even a partial compensation for the injury, nor, what is of infinitely more importance, an opportunity of fairly meeting and rebutting the calumny. This doctrine is upheld by the courts in England upon the ground -that the spiritual courts alone have jurisdiction in such cases. As unsatisfactory as this reason has been acknowledged to be there, it is wholly inapplicable in the American courts. But we have seen no case in which it has been held that words charging a female, either married or single, with a want of chastity, are of themselves actipnable by the common law. Oases have been cited where it is made so by statute, and in some others, as for instance in Connecticut, New Hampshire, and Massachusetts, in which it is said that such words [469]*469are by the common law of those States actionable; but it is placed upon the ground that by statute in those States, fornication, lewdness, &e., are indictable offences, and that the words consequently impute a crime. (Frisbie v. Fowler, 2 Conn., 707; Miller v. Parish, 8 Pick., 384; McGee v. Wilson, Little’s Sel. Cases, 187; Williams v. Greenwood, 3 Dana, 432; Shield v. Cunningham, 1 Blackf., 86.) It is the duty of the courts to administer the law, not to make or remodel it. However strong, therefore,,may be our convictions of the impolicy of it as we find it, the authorities upon which it has been settled, are too many and too great to run counter to them. The conclusion that we have attained, is the same to which this court was forced, when the question was previously before it in the case of Linney v. Matón, 13 T ex., 449. And but for the interest of the question, we should have deemed it only necessary to have cited this decision.
Nevertheless, while the authorities will not uphold a suit for such words as are set out in the petition, unless special damage has resulted to the plaintiff, any damage however slight has been said to be sufficient to sustain the action. For example, in Miller v. Olmsted, 1 Wend., 506, he refusal of civil treatment at a public inn was held evidence of special damage. And that the plaintiff was turned away/rom the house of her uncle, and charged not to return there until she had cleared up her character, was also held sufficient to sustain the action. (Williams v. Hill, 19 Wend., 305.) So in Bradt v. Towsley, (13 Wend., 253,) allegations almost identical in language with that used in the petition in this case, charging in consequence of the slanderthe loss of health and consequent incapacity to attend to business, was held on demurrer, a sufficient averment of special damage. It is true that it is also said, the damage in consequence of the slanderous words must be in the nature of a pecuniary loss, and otherwise the action can not be sustained; and, also, that the injury must be the natural and immediate consequence of them.' But the court can not say, as a question of law, that the words of a ribald and malign slanderer may not prey like % canker upon (he mind and health of a sensitive and nervous female, until the one is unsettled and the other impaired and destroyed, much less that pecuniary injury would [470]*470not result from the loss of health, and the inability to discharge her ordinary and accustomed domestic labor. We are therefore of the opinion, that the court did not err in overruling the special exceptions of the defendants to the plaintiff’s petition.
The motion for a new trial, however, presents for our consideration the question, whether the testimony before the jury establishes with sufficient certainty to' sustain the verdict, the fact that the plaintiff did in reality, sustain any pecuniary loss or damage, as a direct and natural effecff of the imputed slanderous words spoken of her by the deiendant. Although on questions of fact, the verdict of the jury will not be disturbed in this court, if it can fairly and reasonably be sustained by the evidence, and in cases of this character, the court would feel especially disinclined to interfere with it, unless the testimony is clearly insufficient to support it, we are forced to the conclusion, after a careful examination of the statement of facto in this case, that the evidence before the jury does not authorize the verdict.
Free access — add to your briefcase to read the full text and ask questions with AI
Moore, J.
It is an undeniable proposition, that at common law the husband is á necessary party in an action for slander by the wife, as well as other torts. (1 Chit., Pl. 92; 2 Kent., 149; Hanks and wife v. Harman and wife, 5 Binn., 43.) And it has been held that he may be sued alone in such case. (Hasbrouck v. Weaver, 10 John., 247.) It is insisted, however, that the common law doctrine upon this subject, is abrogated in this State by our statutes regulating marital rights. With us the separate identity of the wife, with respect to her property, is not merged in the husband. Her property is not vested in him by marriage. But the common law rule holding the husband responsible for the wife’s -torts, does not rest entirely upon the ground that he takes by marriage all of her personal property, and that she is presumed to have no separate estate. It rests perhaps mainly upon the supposition that her acts are the result of the superior will and influence of the husband. Owing to the intimate relation between husband and wife, and to the nature of the control given him by law and social usage, over her conduct and actions, it would be difficult, if not impossible, for the courts to determine when she had acted at her own instance, and when she was guided by his dictation. While our statutes are framed with the view of securing to the wife her separate property, and of sedulously protecting her With reference to it, against the recognized and controlling influence of the husband over her conduct, it would be a stretch of judicial authority to hold, that the common law responsibility attaching to Mm for the acts of the wife, is by mere implication abolished. We see therefore, no objection to the prayer of the [468]*468petition for a general judgment, and think the general demurrer was properly overruled. Whether the judgment in such cases should not be so framed as to require, in the first instance, satisfaction from her separate estate, or the community property, before resorting to the separate property of the husband, as no exception has been taken to the form of the judgment, need not at present be discussed.
It is insisted by appellees, that this court should declare that words charging a female with lewdness, are actionable by the common law of this State. That this should be the law, we entertain no question. It is a matter of regret and surprise, that this blot upon the common law should have been suffered by legislative authority, to remain so long a stigma upon our jurisprudence. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than when a female is charged with incontinence; and therefore, in no other should the plaintiff be better entitled, in reason and good sense, to the benefit of that presumption. Yet while the criminal code has reduced deliberate homicide in revenge for insulting words towards a female relation of the party guilty of the homicide, from murder to manslaughter, for this species of slander, than which none can be more cruel and malicious in its origin, or more pernicious in its consequences, unless some specific damages can, be proved, the party whose peace of mind is destroyed, and whose prospects in life are ruined, can by any appeal to the courts of the country obtain neither even a partial compensation for the injury, nor, what is of infinitely more importance, an opportunity of fairly meeting and rebutting the calumny. This doctrine is upheld by the courts in England upon the ground -that the spiritual courts alone have jurisdiction in such cases. As unsatisfactory as this reason has been acknowledged to be there, it is wholly inapplicable in the American courts. But we have seen no case in which it has been held that words charging a female, either married or single, with a want of chastity, are of themselves actipnable by the common law. Oases have been cited where it is made so by statute, and in some others, as for instance in Connecticut, New Hampshire, and Massachusetts, in which it is said that such words [469]*469are by the common law of those States actionable; but it is placed upon the ground that by statute in those States, fornication, lewdness, &e., are indictable offences, and that the words consequently impute a crime. (Frisbie v. Fowler, 2 Conn., 707; Miller v. Parish, 8 Pick., 384; McGee v. Wilson, Little’s Sel. Cases, 187; Williams v. Greenwood, 3 Dana, 432; Shield v. Cunningham, 1 Blackf., 86.) It is the duty of the courts to administer the law, not to make or remodel it. However strong, therefore,,may be our convictions of the impolicy of it as we find it, the authorities upon which it has been settled, are too many and too great to run counter to them. The conclusion that we have attained, is the same to which this court was forced, when the question was previously before it in the case of Linney v. Matón, 13 T ex., 449. And but for the interest of the question, we should have deemed it only necessary to have cited this decision.
Nevertheless, while the authorities will not uphold a suit for such words as are set out in the petition, unless special damage has resulted to the plaintiff, any damage however slight has been said to be sufficient to sustain the action. For example, in Miller v. Olmsted, 1 Wend., 506, he refusal of civil treatment at a public inn was held evidence of special damage. And that the plaintiff was turned away/rom the house of her uncle, and charged not to return there until she had cleared up her character, was also held sufficient to sustain the action. (Williams v. Hill, 19 Wend., 305.) So in Bradt v. Towsley, (13 Wend., 253,) allegations almost identical in language with that used in the petition in this case, charging in consequence of the slanderthe loss of health and consequent incapacity to attend to business, was held on demurrer, a sufficient averment of special damage. It is true that it is also said, the damage in consequence of the slanderous words must be in the nature of a pecuniary loss, and otherwise the action can not be sustained; and, also, that the injury must be the natural and immediate consequence of them.' But the court can not say, as a question of law, that the words of a ribald and malign slanderer may not prey like % canker upon (he mind and health of a sensitive and nervous female, until the one is unsettled and the other impaired and destroyed, much less that pecuniary injury would [470]*470not result from the loss of health, and the inability to discharge her ordinary and accustomed domestic labor. We are therefore of the opinion, that the court did not err in overruling the special exceptions of the defendants to the plaintiff’s petition.
The motion for a new trial, however, presents for our consideration the question, whether the testimony before the jury establishes with sufficient certainty to' sustain the verdict, the fact that the plaintiff did in reality, sustain any pecuniary loss or damage, as a direct and natural effecff of the imputed slanderous words spoken of her by the deiendant. Although on questions of fact, the verdict of the jury will not be disturbed in this court, if it can fairly and reasonably be sustained by the evidence, and in cases of this character, the court would feel especially disinclined to interfere with it, unless the testimony is clearly insufficient to support it, we are forced to the conclusion, after a careful examination of the statement of facto in this case, that the evidence before the jury does not authorize the verdict. The plaintiff’s ill health and consequent inability to do the household duties which phe had been accustomed to perform, was testified to by but one witness, who seems to have had only occasional opportunities of drawing his conclusions, and even by his evidence her impaired health and inability to labor was temporary. The only attempt to show a connection between the alleged slander and the plaintiff’s ill health, is by the opinion of this witness based, it seems, simply upon the fact of their being cotemporaneous. The fact to be proved, it is true, is one which can ordinarily be established only by circumstantial evidence; but, we think, when it may be so readily traced to some other cause, the mere opinion of this witness, unless supported by some other facts than he has stated, or by better "opportunities for its basis than he has shown himself to possess, is not sufficient to establish the fact which it was incumbent upon the plaintiff to prove. It see'ms, also,' that the nature and duration of her illness, as well as its effect upon her ability for the discharge of her accustomed duties in the family, might have been much more satisfactorily and clearly shown by the members of the family, her physician and friends, some of whom must have been in the daily, and the others in the frequent and habitual intercourse with, [471]*471her. Nor was there any effort to show that she was accustomed to derive any pecuniary benefit from the labor in the family which she usually performed, or that it was of such a character as to justify the inference that the inability to perform it must have been attended with pecuniary loss. We forbear, however, a further comment upon the testimony, as it will no doubt, in connection with such other evidence as may be accessible to the parties, be again presented for the consideration of the jury.
For the error of the court in overruling the motion for a new trial, the judgment is reversed, and the cause remanded.
Reversed aiid remanded.