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

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWRIGHT, C. J.
Citation3 Iowa 274
Docket Number.
DateInvalid date

Page 274

3 Iowa 274 (Iowa. 1856)




Supreme Court of Iowa, Iowa City

December, 1856

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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.


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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, are not before us, we cannot say but that the instructions asked by appellants, were refused, because they had been previously given. The whole record rebuts any such presumption. The overruling of the demurrer, which raised substantially the same questions, clearly shows that on this point the court could not have instructed in chief, as requested by appellants. And then, again, these instructions are asked in so many different forms, and refused in all, that we can hardly suppose that the same view had been taken in the previous instructions. But still further, we would be unwilling to allow a party to be prejudiced by the refusal of the court to give a correct instruction, because the same may possibly have been given in instructions which have been lost, without his fault.

It is next claimed by appellees, that one count charges the defendant's wife with having been guilty of adultery; that

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the proof may have been confined to that count alone; and if so, the instruction asked, were properly refused, on the ground of their inapplicability. The whole record, however, so unmistakably shows that the words charging the abortion, were those relied upon for a recovery, that we should be doing violence to suppose the instructions were refused as being inapplicable; and especially so, as nothing of the kind is intimated by the judge trying the cause, when refusing said instructions. We conclude, therefore, that the question is fairly presented, whether the instructions asked were correct, and should have been given.

To maintain an action of slander, the consequence of the words spoken, must be to occasion some injury or loss to the plaintiff, either in law or fact. As the declaration in this case, claims no special damages, or a loss or injury, in fact, we are left to inquire whether the charges referred to in the instructions refused, was of such a character as to amount to an injury in law. To determine this, it becomes material to ascertain in what cases this action may be maintained, without proof of special damages. Starkie, in his work on Slander, page 9, lays down the rule, that such action may be maintained "when a person...

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