Bashford v. Wells

• Decision Date: 06 June 1908
• Docket Number: 15,576
• Citation: 78 Kan. 295,96 P. 663
• Parties: H. F. BASHFORD v. L. D. WELLS
• Court: Kansas Supreme Court

96 P. 663

78 Kan. 295

H. F. BASHFORD v. L. D. WELLS

No. 15,576

Supreme Court of Kansas

June 6, 1908

Decided January, 1908.

Error from Norton district court; WILLIAM H. PRATT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ADULTERY--Evidence. The sexual intercourse of a married man with a woman other than his wife, whether married or single, is adultery upon his part within the meaning of the statute making adultery a misdemeanor.

2. SLANDER--Evidence--Pleading. Where a petition in an action for slander alleges that the defendant said of the plaintiff, a married man, intending thereby to charge him with the offense of adultery: "B. was undoubtedly down the railroad track with some woman; I believe it; he is guilty, I know he is," it is error to sustain an objection to the introduction of any evidence upon the ground that the words complained of are not susceptible of the meaning attributed to them or that sufficient facts are not pleaded to show that they were used in that sense.

Gregg & Gregg, and L. H. Wilder, for plaintiff in error.

L. H Blackledge, for defendant in error.

OPINION

MASON, J.:

This is an action for slander. The petition alleged the utterance of words which the plaintiff claims imputed to him the crime of adultery. The trial court sustained an objection to the introduction of any evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action. In justification of this ruling two contentions are made: (1) That the language pleaded as defamatory did not charge an act of sexual intercourse; and (2) that, even if so, it did not charge adultery or any other public offense, because it failed to allege that the woman in the case was married. The petition contained several counts, only one of which--that designated as the third--need be considered. Its substantial allegations, so far as here important, were as follow:

"That all of the times hereinafter mentioned the plaintiff was, and now is, a married man . . . that on or about June 24, 1905, . . . such defendant . . . did, falsely, wantonly, and maliciously, speak and publish of and concerning the plaintiff, as follows: 'Bashford,' meaning the plaintiff, 'was undoubtedly down the railroad track with some woman.' 'I,' meaning the defendant, 'believe it,' meaning that he, defendant, believed that the plaintiff was down the railroad track with some woman. 'He,' meaning the plaintiff, 'is guilty,' and 'I,' meaning the defendant, 'know he,' meaning the plaintiff, 'is,' meaning that the plaintiff, on a certain night theretofore, had been down the railroad track of the Missouri Pacific Railway Company engaged in an act of adultery."

It is argued that the words of the defendant are not capable of the meaning attributed to them; that in themselves and according to their ordinary significance they imputed to the plaintiff no conduct that was not perfectly proper and innocent; and that no facts are set out in issuable form giving them any other color. To this it may be answered that, while the words "Bashford was undoubtedly down the railroad track with some woman" are susceptible of an innocent construction, they might under some circumstances carry the suggestion of an illicit relation. And the expression "he is guilty" is entirely inconsistent with the idea that the speaker had in mind a harmless act. Of this expression the defendant says in his brief: "How does it imply adultery? He may have been guilty of fornication; simple assault; robbery; insult or indiscretion." There is no difficulty in saying that the words complained of, taken together, might well imply a charge of unchastity. As they were capable of that meaning it was the proper office of the innuendo to present the issue whether they were in fact so used. (Henicke v. Griffith, 29 Kan. 516.)

"It is not necessary in order to constitute actionable slander that the words should amount to a directly affirmative charge of fornication, adultery, or unchastity; it is sufficient if the words were calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of unchastity, charges of unchastity against men being within the application of the rule as well as imputations upon women." (25 Cyc. 319.)

It is hardly necessary to cite further authorities on this question, but the following examples of words that have been held actionable as charging illicit sexual relations seem sufficiently like those under consideration to be pertinent:

"What a pity we have got such a man for a director. His moral character is not good. You must have heard about his being caught with the house-girl. I have got proof enough. I have been looking around and I know it's so. He is vile." (Lovejoy v. Whitcomb, 174 Mass. 586, 587, 55 N.E. 322.)

"Baden saw or told him that . . . he either scared or drove Jane Owens and a man supposed to be Jo. Dearmond up from behind a log; . . . that they broke and run, and that he (Baden) got her parasol and handkerchief, and if anybody did not believe him he could come and see them." (Proctor v. Owens, 18 Ind. 21, 81 Am. Dec. 341.)

"She is a dangerous woman, and inclined for men." ( Ronnie v. Ryder, 8 N.Y.S. 5, 6.)

"I knew her grandfather Link. He was a woman's man, and Rose is just like him. Her mother, Henrietta Parkhurst, is like her father, and Rose is no better." (Derham v. Derham, 123 Mich. 451, 452, 82 N.W. 218.)

"Paget left his wife at my father's, and then went down to George's with his horse and sleigh, and wanted George to take care of his horse, and while he was gone, Paget and his wife went into the bedroom together, and when George came back from the barn, he found them both there." (Sturtevant v. Root, 27 N.H. 69, syllabus.)

"She [a prostitute] is, I understand, under the patronage or protection of a Mr. More." (More v. Bennett, 48 N.Y. 472, 475.)

"Augustus . . . caught them . . . [a man and a woman] together in the packing-room, and went home and told his mother." (Catharine Evans v. Tibbins et uxor., 2 Grant's Cases [Pa.] 451.)

"Complaints from outside parties were sent to the department, one asking for his dismissal on account of intimacy with a well-known young local elocutionist." (Collins, Appellant, v. Dispatch Pub. Co., 152 Pa. 187, syllabus, 25 A. 546, 34 Am. St. Rep. 636.)

"I do not visit Mrs. Henicke . . . would be ashamed to be associated with her. . . . Mrs. Henicke keeps that grocer man, Broadwell--he calls two or three times a day; she . . . thinks more of Broadwell than she does of her husband; Henicke . . . is a mere ornament which she keeps there for certain purposes; Broadwell remains in the house for hours when Henicke . . . is away, alone with Mrs. Henicke." ( Henicke v. Griffith, 29 Kan. 516, 517.)

That no injustice is done the defendant by the interpretation suggested is shown by his answer, which, after a general denial, proceeded as follows:

"For a further defense in said cause defendant alleges the fact to be that on the 13th day of June, 1905, on the night of said date, between the hours of eight o'clock P. M. and half past ten o'clock P. M. of said night, in the county of Norton, state of Kansas, and near the town and village of Edmond, in said county, on or near the track of the railroad known as the Missouri Pacific railroad, a short distance east of said Edmond, to wit, a little more than one-half mile, the plaintiff was then and there in company with a woman whose name is to the defendant unknown, and then and there committed an act of sexual intercourse with such woman."

No special damages having been alleged, doubtless the defamatory words were not actionable unless they did charge adultery. It is therefore necessary to decide whether illicit sexual intercourse with a single woman can constitute that offense, for if not the petition was probably defective in omitting to state that the woman referred to in the utterance complained of was married. (25 Cyc. 443.) There is a conflict of authority upon this question, the origin of which is thus explained in volume 1 of the American and English Encyclopaedia of Law, at pages 747, 748:

"Adultery by the common law, is criminal conversation with a man's wife. The woman must be married; she must be another man's wife; and whoever, married or single, has illicit intercourse with her, becomes guilty of adultery.

"The common law concerned itself with the act of adultery only as it tended to expose an innocent husband to maintain another man's children, and having them succeed to his inheritance. Hence adultery was limited to criminal conversation with a married woman; the connection of a married man with a single woman does not, by the common law, make him guilty of the offense. . . . By the canon or ecclesiastical law adultery was sexual connection between a man and a woman, of whom one at least was lawfully married to a third person. The ecclesiastical law regarded adultery as a sin arising out of the marriage relation. And, as a violation of the marriage vow, it was equally great whether the offender was male or female. Hence the offense was broader than at common law, and was committed by a married man having connection with a single woman. . . . In defining the crime of adultery under statutes of this kind the courts of some of the states have, it seems, adopted the definition of the common law. Thus it is held that the sexual intercourse of a single man with a married woman is adultery in the man. But it is considered that adultery can be committed only with a married woman, so that a man, though married, does not commit the crime by having intercourse with a single woman.

"Other authorities are more in accordance with the ecclesiastical law. They...