3 Iowa 274 (Iowa. 1856), Abrams v. Foshee

Citation:3 Iowa 274
Opinion Judge:WRIGHT, C. J.
Attorney:Palmer & Trimble, for the appellants C. C. Nourse, and Knapp & Caldwell, for the appellees
Court:Supreme Court of Iowa

Page 274

3 Iowa 274 (Iowa. 1856)




Supreme Court of Iowa, Iowa City

December, 1856

Page 275

Appeal from the Davis District Court.

DECEMBER 8, 1856.

SLANDER. Verdict and judgment for plaintiff. The petition contains twelve counts, charging the slanderous words to have been spoken in various forms. The substance of the charging part of most of the counts, is as follows: "That the wife of defendant, on the first day of January, 1855, in speaking of the fact, that the wife of the plaintiff did not have children born alive, and of and concerning the subject of producing abortion and destroying children before birth, of which said plaintiff's wife had been pregnant, falsely and maliciously spoke and published of the said Julia A., (wife of plaintiff,) these slanderous words, to-wit: "she is a bad woman; she has destroyed with instruments, children since she has been here; she has destroyed one or two children since she has been here; she takes medicine and kills her children; she destroys her children." One count charges the defendant's wife with having said, "she (meaning plaintiff's wife,) is not a decent woman; she has sexual intercourse with other men." No special damages are claimed; the petition was demurred to, for the reason that the words charged are not actionable per se, which demurrer was overruled. On the trial, the defendants asked the following, among other similar instructions:

Words, charging a woman with causing or producing an abortion, in this state, since the first day of July, 1851, are not in themselves actionable; that producing an abortion before the child is quick, is not now a crime in Iowa, and has not been since July 1, 1851; and that charging a female with having produced an abortion, under such circumstances, is not actionable; which instructions were refused. It appears from the certificate of the clerk, that the instructions in chief given to the jury, had never been returned by them, and what those instructions were, is in no manner shown. Defendants appeal.


Palmer & Trimble, for the appellants, cited the following authorities:

Onslow v. Wilson, 3 Wilson 177; Chaddock v. Briggs, 13 Mass. 248; Blass v. Tobey, 2 Pick. 320; Harvey v. Boies, 1 Penr. & W., 12; Weierbach v. Trone, 2 Watts & Serg., 408; Williams v. Karnes, 4 Humph. 9; Elliott v. Ailesberry, 2 Bibb 473; Mills and wife v. Wimp, 10 B. Monr.; Billings v. King, 7 Vt. 439; Shafer v. Kinster, 1 Binney 537; Chapman v. Cook, 2 Tyler; Coburn v. Howard, Minor, 93; McEwen v. Ludlam, 2 Harrison 13; Kinney v. Kasla, 3 Harrington 77; Taylor v. Kneeland, 1 Douglass 68; Giddons v. Meek, 4 Geo. 364; Dunnell v. Fisk, 11 Metc. 551; Tenny v. Clement, 10 New Hamp., 32; Heming v. Power, 10 Mees. & Wels., 564; Byron v. Elmes, Salkeld, 693; Brandt and wife v. Roberts and wife, 4 Burrows 2418; 2 Johns. 115; 6 Har. & Johns., 248; 3 New Hamp., 194; 3 Nott & McCord, 204; 4 Stew. & Port., 387; 2 Bibb 473.

C. C. Nourse, and Knapp & Caldwell, for the appellees, cited the following:

Code, §§ 25, 68; Chitty's Med. Juris., 410; Malone v. Stewart and wife, 15 Ohio 320; Daily v. Reynolds, Iowa Supreme Court.


Page 276


But one question is presented for our consideration by appellants, and that is, whether words charging a woman with causing or producing an abortion, are actionable in this state?

The appellees claim, first, that as the instructions in chief...

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