15 Ohio 319 (Ohio 1846), Malone v. Stewart

Citation:15 Ohio 319
Opinion Judge:READ, J.
Party Name:ELIZABETH JANE MALONE v. JAMES STEWART AND WIFE
Attorney:STANTON & McCOOK, for plaintiff in error. MASON & MOODY, for defendants.
Court:Supreme Court of Ohio
 
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15 Ohio 319 (Ohio 1846)

ELIZABETH JANE MALONE

v.

JAMES STEWART AND WIFE

Supreme Court of Ohio

December, 1846

THIS is a writ of error, directed to the court of common pleas of Jefferson county.

The action below was case for slander. The words charged in the declaration were, that Olive Stewart, the wife of said James Stewart, had said of the plaintiff below that she was a hermaphrodite. To the declaration the defendants interposed a general demurrer, and the court of common pleas sustained the demurrer, and gave judgment for the defendants. To reverse that judgment this writ is prosecuted.

Judgment reversed, and remanded for further proceedings.

SYLLABUS

To call a woman a hermaphrodite, is actionable, without alleging special damages.

Words spoken of a female, and having a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right as a woman, are actionable in themselves.

STANTON & McCOOK, for plaintiff in error.

MASON & MOODY, for defendants.

OPINION

READ, J.

Page 320

It is contended that the words charged in the declaration are not actionable. The court of common pleas took this view, and sustained the demurrer. It is said that the charge imports neither crime, guilt, nor moral turpitude. It is a wellestablished principle of law, that words which impute a charge necessarily tending to injure a man, or his trade, or occupation, or profession, or to exclude him from society, are actionable in themselves.

A more gross or indelicate slander could not well have been uttered against a female -- especially a young girl -- or one more calculated to wound her feelings and do her mischief. It unsexes her; makes her a thing to be stared at; converts her into a monster, whose very existence is shocking to nature; and would be certain, among the young or thoughtless, to bring her into ridicule and contempt; and excludes her from social intercourse and all hopes of marriage. It is infinitely worse than a charge of incontinence, as to its injurious results, to the feelings and prospects of the female.

To hold that there was no remedy for a case of this sort, would be an utter disgrace to the law and ourselves. It is said that, if the plaintiff would inquire around, and if she could ascertain that she had been especially injured...

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