Blake v. Smith

• Decision Date: 22 May 1896
• Citation: 19 R.I. 476,34 A. 995
• Parties: BLAKE et ux. v. SMITH et ux.
• Court: Rhode Island Supreme Court

34 A. 995

19 R.I. 476

BLAKE et ux.

v. SMITH et ux.

Supreme Court of Rhode Island.

May 22, 1896.

Trespass on the case for slander by George H. Blake and wife against Lawrence W. Smith and wife. Defendants demur to the declaration. Demurrer sustained.

George J. West and John E. Conley, for plaintiffs.

Marquis D. L. Mowry, for defendants.

TILLINGHAST, J. This is an action of trespass on the case for slander. The declaration contains five counts. The first and third counts set out certain slanderous language alleged to have been uttered and published by the defendant Lawrence W. Smith of and concerning the plaintiff Emma Blake; the second and fourth counts set out certain slanderous language alleged to have been uttered and published by the defendant Nellie Smith of and concerning the plaintiff Emma Blake; and the fifth count sets out certain slanderous language alleged to have been uttered and published by both of the defendants of and concerning the plaintiff Emma Blake. The defendants have filed a general demurrer to the declaration on the grounds: (1) That the plaintiffs cannot join the defendants in an action for words spoken by the husband only; (2) that the plaintiffs cannot join the defendants for slanderous words spoken by both of them; (3) that in an action for slander for words spoken by the husband, words spoken by his wife cannot be joined; (4) that a joint action cannot be supported against two persons for verbal slander, the words of one not being the words of the other; (5) that the language alleged to have been uttered and published by the defendants, or either of them, is not actionable per se, and that no special damages are alleged, or special cause shown, to make the language used of and concerning the plaintiffs, or either of them, otherwise actionable.

We think the demurrer, in so far as it relates to the misjoinder of causes of action, must be sustained. It is clearly error to join the wife of the defendant in an action for words spoken by the husband; for, while the husband is liable at common law for his wife's torts (9 Am. & Eng. Enc. Law, pp. 82, 83, and cases cited in note 8. See note to Morgan v. Kennedy [Minn.] 30 Lawy. Rep. Ann. 521-530, 64 N. W. 912), yet the converse of this proposition is not true. And to allow her to be joined with her husband for a slander uttered and published by him would be to make her liable for his wrong. The declaration is also de murrable in that it charges, in the fifth count, that the slanderous language therein set out was uttered and published by both of the defendants jointly. It is well settled that an action cannot be maintained against two persons jointly for uttering and publishing slanderous words, because the words of one are not the words of another. The act of each constitutes an entire and distinct offense. Webb v. Cecil, 9 B. Mon. 198; Thomas v. Rumsey, 6 Johns. 32. This action was commenced in 1891, and hence is not affected by subsequent legislation regarding actions by and against married women. See Gen. Laws R. I. c. 194, § 16; Renters v. England, 1 McCord, 14; Malone v. Stilwell, 15 Abb. Prac. 421. Mr. Townshend, in his valuable work on Slander and Libel, section 118, states the law upon this point as follows: "If two or more utter the like words, either simultaneously or separately, it is not a joint publication, but a separate publication by each, for which each must be sued separately, and for which they cannot be sued jointly." See cases cited in note 1. "Within this rule, husband and wife are considered as separate individuals. If husband and wife utter the like words, either simultaneously or separately, they are two publications; a separate publication by each. For the words uttered by the husband he must be sued alone; for the words uttered by the wife the husband and wife must be sued together." See, also, note to Morgan v. Kennedy, supra, 527; Roadcap v. Sipe, 6 Grat 213; Baker v. Young, 44 Ill. 42. "Though the husband and wife speak the same words," says Starkie (Sland. & L. p. 354), "the plaintiff must bring different actions, and the court will not permit them to be consolidated, for it would be error to join the wife for words spoken by the husband only, and the declaration would be ill, either upon demurrer or on arrest of judgment." Dicey, Parties (Truman's Notes) 325. There may be a joint publication by writing, as, for instance, where the libel is signed by both of the defendants, or where the composition of a libelous letter is participated in by two and written by one of them, and afterwards sent by mail to the person to whom it was addressed. Miller v. Butler, 6 Cush. 71. In such case an action may be sustained against both, on the ground that it is an entire offense,—a joint act. See Russell v. Webster, 23 Wkly. Rep. 59; Harris v. Huntington, 2 Tyler, 147; Starkie, Sland. & L. 354; Gazynski v. Colburn, 11 Cush. 10. So a husband and wife may be jointly sued for a libel published by them jointly. See Catterall v. Kenyon, 3 Q. B. 310; Townsh. Sland. & L. (3d Ed.) § 119.

We might content ourselves by sustaining the demurrer for the reasons above given, but as the plaintiffs may, and probably will, obtain leave to amend their declaration in the common pleas division, either by discontinuing as to the defendant's wife or by striking out the count against the husband, and also the count which charges them both with uttering and publishing the slanderous language complained of, and also may obtain leave to amend as to certain formal defects hereinafter mentioned, we deem it wise to consider the last ground of demurrer, viz. that the language alleged to have been used was not slanderous per se. The language alleged to have been used by the defendant Lawrence W. Smith, in the first count, is this: "She [meaning the said Emma Blake] is a woman of bad character. She [meaning the said Emma] keeps a bad house, where men go at all times. She [meaning the said Emma] is a low woman, and does not keep a respectable house,"—meaning and intending thereby that the said Emma Blake was unchaste, and guilty of the crime of adultery, and also that she kept and maintained a common nuisance, to wit, a place where idle, noisy, dissolute,...