Barnett v. Phelps

• Decision Date: 27 July 1920
• Parties: BARNETT v. PHELPS.
• Court: Oregon Supreme Court

191 P. 502

97 Or. 242

BARNETT v. PHELPS.

Supreme Court of Oregon

July 27, 1920

Department 1.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Action by Ida Barnett against Florence Phelps. From an involuntary judgment of nonsuit, plaintiff appeals. Affirmed.

Ida Barnett, an unmarried woman, sued Florence Phelps for damages, alleging that on one occasion in the presence of Mrs. Harry Mitchell the defendant spoke of the plaintiff as a "whore," and that on another occasion, and in the presence of George H. Benson, the defendant characterized the plaintiff as a "prostitute." The evidence concerning the first occasion strictly conformed with the allegation; and although the evidence as to the second occasion did not exactly agree with the language of the complaint, we shall assume that the evidence was sufficient to sustain the charge that the defendant spoke of the plaintiff as a prostitute.

There was neither allegation nor proof of special damage. At the close of the plaintiff's case, the trial court, upon the motion of the defendant, granted an involuntary judgment of nonsuit. The plaintiff appealed.

Oliver M. Hickey, of Portland (H. T. Botts, of Tillamook, on the brief), for appellant.

S. S Johnson, of Tillamook (Johnson & Handley, of Tillamook, on the brief), for respondent.

HARRIS J.

The only question for decision is whether the court erred in entering an involuntary judgment of nonsuit. If the words employed by the defendant are not actionable per se in this jurisdiction, then the inescapable conclusion is that the trial court ruled correctly.

Spoken words are either actionable or not actionable. Actionable words are divided into two classes: (1) Those which are actionable in themselves, or per se; and (2) those which are actionable only upon allegation and proof of special damage or per quod. Defamatory words, where spoken, may or may not be actionable per se, depending upon whether or not they may properly be assigned to one or more of the several classes of cases which the rules of the common law have designated as actionable per se. If defamatory words are not actionable per se the complainant must allege and prove special damage. Words of both classes are actionable on the same ground and for the same reason. 17 R. C. L. 264. "The material element," this court has said, "which lies at the foundation of the action of slander is social disgrace, or damages to character in the opinion of other men." Quigley v. McKee, 12 Or. 22, 5 P. 347, 53 Am. Rep. 320.

Both classes of words are the natural and proximate causes of pecuniary damage. Words actionable per se are classified as such on the theory that their injurious character is admitted by all men; and that on that account they are conclusively presumed to result in damage; but other words are actionable only upon allegation and proof of their injurious effect. Words actionable per se are usually divided into four classes, as follows: (1) Words which impute a charge which, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment; (2) words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; (3) defamatory words, falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment; and (4) defamatory words, falsely spoken of a party which prejudice such party in his or her profession or trade. Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Williams v. Riddle, 145 Ky. 459, 140 S.W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151.

Obviously, the words spoken by the defendant cannot be assigned to any of the four classes, unless it be to the first one mentioned; hence we shall seek to discover whether the words uttered by the defendant are in the present state of the law in this jurisdiction, included in the first class of cases. It is apparent that this classification made of actionable words is based upon an arbitrary rule rather than upon the result of inquiries concerning proximate cause and natural effect, because if the rule were framed and governed by considerations of cause and effect it would necessarily include many cases now excluded. Quigley v. McKee, 12 Or. 22, 24, 5 P. 347, 53 Am. Rep. 320; Williams v. Riddle, 145 Ky. 459, 140 S.W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151.

An examination of the authorities will disclose the fact, as illustrated in State v. Conklin, 47 Or. 509, 516, 84 P. 482, that statements may be found to the effect that spoken words are actionable per se if they impute the commission of an offense liable to indictment and punishment, without any qualifying expressions concerning the element of moral turpitude, or the character of the penalty prescribed for the crime. The precedent last mentioned must, however, be read in the light of the facts there under investigation, and, when so read, it becomes manifest that the court was not called upon to decide, and did not attempt to decide, whether words were actionable per se if imputing a crime for which an indictment would lie, regardless of the presence or absence of moral turpitude, and regardless of the nature of the prescribed punishment. Perhaps it is not now important, except in the interest of accuracy, to determine whether the single fact that the imputed offense is indictable is alone sufficient, without the presence of either the element of moral turpitude or the element of infamous punishment; for the reason that although it may be difficult to phrase a satisfactory definition of moral turpitude (Ex parte Mason, 29 Or. 18, 22, 43 P. 651, 54 Am. St. Rep. 772) the words uttered by the defendant impute a charge which, if true and constituting a crime, unquestionably involve moral turpitude. Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308. In Brooker v. Coffin, 5 Johns. (N. Y.) 188, 4 Am. Dec. 337, the following rule was given as the test: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable."

This test has been so often applied that it may be accepted as a correct statement of the law. Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Davis v. Sladden, 17 Or. 259, 21 P. 140; Clark v. Morrison, 80 Or. 240, 244, 156 P. 429.

Under the custom of London a whore was "carted," and on that account to characterize a woman as such was actionable per se in London; but with this exception a private act of incontinence, whether fornication or adultery, was cognizable only in the ecclesiastical courts. 1 Bishop's New Cr. Law, §§ 38, 501; State v. Moore, 1 Swan (Tenn.) 136; State v. Smith, 32 Tex. 167; 2 Wharton Cr. Law (10th Ed.) §§ 117, 1741; 1 A. & E. Ency. Law (2d Ed.) 747; 13 A. & E. Ency. of Law (2d. Ed.) 1119. Nor did repeated acts of fornication or adultery constitute a crime, even though committed with many persons. 1 Bishop's New Cr. Law, § 501; State v. Evans, 27 N.C. 603; Reg. v. Pierson, 1 Salk, 382.

"A 'whore' is a woman given to promiscuous commerce with men, usually for hire." Bishop on Statutory Crimes (2d Ed.) § 715; 40 Cyc. 933.

A prostitute is often defined as a female given to indiscriminate lewdness for gain ( Davis v. Sladden, 17 Or. 259, 264, 21 P. 140; Bishop on Statutory Crimes, section 641), although it has been held that gain is not necessary (32 Cyc. 732). The word "prostitution" has no common-law meaning ( People v. Cummons, 56 Mich. 544, 23 N.W. 215), and to be a common prostitute was not at common law indictable as a distinct and substantive offense (32 Cyc. 732).

It makes no difference then whether we construe the words used by the defendant to mean the acts of incontinence, or the condition produced by those acts; for in neither event do the words import a crime at common law, since neither a private act of incontinence, even though repeated with many men, nor the condition of being a prostitute, constitutes a crime; and therefore under the common law to say of a woman she is a whore, or a prostitute, or by other language to impute unchastity to her, was not actionable per se. Boyd v. Brent, 3 Brev. 241; Underhill v. Welton, 32 Vt: 40; Linney v. Maton, 13 Tex. 449; Reg. v. Pierson, 1 Salk, 382; Douglas v. Douglas, 4 Idaho, 293, 38 P. 934; Battles v. Tyson, 77 Neb. 563, 110 N.W. 299, 24 L. R. A. (N. S.) 577, 15 Ann. Cas. 1241; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Davis v. Sladden, 17 Or. 259, 261, 21 P. 140; 17 R. C. L. 281.

This rule of the common law that spoken words imputing unchastity to a female are not actionable per se, because not imputing a crime, is gradually, but surely, undergoing a change. This change is being brought about both by statute and by judicial decision. In England a change was wrought by the Slander of Women Act, 1891, St. 54 & 55 Vict. c. 51, which enacts that words imputing unchastity or adultery to a woman or girl shall be actionable without proof of special damage. In America similar statutes have been passed in a number of the states, while in other states the courts, declaring the old rule to be a reproach upon the law, have repudiated the arbitrary and harsh rule of the common law, and held that words imputing unchastity to a female are actionable per se even though not involving a criminal offense. If the question were res integra, the writer would take the view that this court should adopt the better and by far the more logical rule that words imputing unchastity are actionable per se,...