Brinsfield v. Howeth

• Decision Date: 08 January 1908
• Citation: 68 A. 566,107 Md. 278
• Parties: BRINSFIELD v. HOWETH.
• Court: Maryland Court of Appeals

68 A. 566

107 Md. 278

BRINSFIELD v. HOWETH.

Court of Appeals of Maryland

January 8, 1908

Appeal from Circuit Court, Wicomico County; Chas. F. Holland, Judge.

Action by Nannie B. Howeth against Zorah H. Brinsfield. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, and BURKE JJ.

Alonzo L. Miles, for appellant.

Frederick H. Fletcher, for appellee.

BURKE J.

This is an action of slander, in which the appellee recovered a judgment of $4,000 against the appellant in the circuit court for Wicomico county, to which court the case had been removed from Dorchester county, where it was originally instituted. The plaintiff is a young, unmarried woman, a resident of Dorchester county, and was engaged in teaching in the public schools of that county. Sections 1 and 2 of article 88, Code Pub. Gen. Laws 1904, provides that all words spoken falsely and maliciously touching the character or reputation for chastity of any woman, whether single or married, and tending to the injury thereof, shall be deemed slander, and shall be treated as such in the several courts of law in this state and any woman, whether single or married, whose character or reputation as a woman of chastity may be traduced or defamed by any person, may sustain an action of slander in her own name against such person. The appellee had instituted a prior suit for slander against the appellant in the circuit court for Dorchester county, and this case was also removed to the circuit court for Wicomico county, where it was tried, and at the conclusion of the plaintiff's case the court granted a prayer that the plaintiff had offered no evidence legally sufficient to entitle her to recover. Whereupon the plaintiff submitted to a judgment of non pros. Two of the causes of action in this case are the same as set out in the former declaration. The declaration in this case contains three counts, and the appellant demurred to each count. This demurrer was overruled, and issue was joined upon the general issue plea. The plaintiff brought this suit without having first paid the costs in the former case, and the defendant moved the court to stay all further proceedings in this cause until the costs of the former action were paid by the plaintiff. This application was denied. During the trial of the case 17 bills of exceptions were taken to the rulings of the court upon questions of the admissibility of evidence. The eighteenth exception relates to the action of the court upon the prayers and upon the special exceptions filed by the defendant to the granting of the plaintiff's sixth and eighth prayers. One of the questions in the case is as to whether certain statements, which will be mentioned later alleged to have been made by the defendant, were privileged communications. The two important questions in the case are first, does the declaration in any of its counts set forth words which are per se actionable? Secondly, were any of the statements alleged to have been made by the defendant privileged? The solution of these questions must be found in the application of well-settled rules to the averments of the narr., and to the facts disclosed by the record. The declaration contains three counts, in each of which there is an innuendo and a proper colloquium. There is, however, no prefatory inducement or statement of the circumstances under which the words were spoken, and no averment of extrinsic matter to show that the words set forth in each count had a local, provincial, or peculiar neighborhood meaning. The alleged defamatory words set out in the first count are: "(1) She (the plaintiff) is a fast girl, and not fit to teach school. (2) She (the plaintiff) is a girl of loose character, and not fit to teach school. (3) I did say that she (the plaintiff) was of a loose character, and not fit to teach school." The words laid in the second count are: "He (the said W. Grayson Smith) has appointed fast girls as school teachers, and one of them became pregnant (meaning pregnant with child)," and on being asked which teacher it was that had become so pregnant, the defendant replied, "Why that was this Nannie Howeth (meaning the plaintiff)," and the defendant thereby then and there meaning and imputing a want of chastity to the plaintiff; and those set forth in the third count are: "I (meaning the defendant) am only sorry for one thing, that I (meaning the defendant) did not strap (meaning have carnal intercourse with) her (meaning the plaintiff) when I (meaning the defendant) had the chance." The innuendoes in the first and second counts are that the defendant meant to impute a want of chastity to the plaintiff, and that by the use of the words declared on in the third count the defendant meant that at some time in the past the plaintiff has consented, or would have consented, to have sexual intercourse with himself, and that he thereby meant and imputed to the plaintiff a want of chastity. If the declaration is not otherwise good, the innuendoes cannot make it good. They cannot add to or enlarge the sense of the words used, and if the alleged defamatory words do not constitute slander in themselves, the innuendoes cannot enlarge or add to their legal meaning and effect. The innuendo is merely a form or mode of introducing explanation. It serves to point out some matter already expressed. It may apply what is already expressed, but cannot enlarge the sense of the previous words. The legal effect of the innuendo is a question of law, which arises under the demurrer. This court, in Lewis v. Daily News Company, 81 Md. 472, 32 A. 246, 29 L. R. A. 59, said: "Upon demurrer it is always the province of the court to determine whether the words charged in the declaration amount in law to libel or slander. Dorsey v. Whipps, 8 Gill, 462; Hanies v. Campbell, 74 Md. 158, 21 A. 702, 28 Am. St. Rep. 240; Avirett v. State, 76 Md. 510, 25 A. 676, 987. It is equally a matter of law as to whether an innuendo is good; that is to say, whether it is fairly warranted by the language declared on, when that business is read, either by itself, or in connection with the inducement and colloquium, if there be an inducement and colloquium set forth. Avirett v. State, supra; Solomon v. Lawson, 8 Q. B. 828." Mr. Chitty, in his work on Pleading (volume 1, p. 400), states the rule to be that, "if the libel or words do not naturally and per se convey the meaning the plaintiff wishes to assign to them, or are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to show that they are actionable, it must be expressly shown that such matter existed, and that the slander related thereto." In Peterson v. Sentman, 37 Md. 153, 11 Am. Rep. 534, the words declared on were: "You (meaning the plaintiff) are a bad woman, and keep a bad house, and I can prove it." Innuendo: Meaning thereby to charge that the plaintiff was not a chaste woman, was a whore, and kept a common bawdy house. In considering the legal effect of these averments the court said: "The words, however objectionable they may be, admit of other constructions, which readily suggest themselves to the mind, than that given to them by the plaintiff. To say a person keeps a bad house may mean a disorderly house, or one that is dirty or comfortless. So indefinite is their meaning that, to render them a foundation of an action like the present, the declaration must set out such a statement of circumstances under which they were used, or of the subject-matter of the conversation, as will indicate that they were applied in a sense imputing to the plaintiff the wrong complained of. But this, under the rule of pleading firmly established by all authorities, must be done through a colloquium and not by way of innuendo, the only object of which is to point to and explain what has before been introduced in the declaration." In that case the court held that the words "you keep a bad house" were not actionable, and in the absence of appropriate prefatory averments could not be made so by the innuendo. In the case of Clute v. Clute, 101 Wis. 137, 76 N.W. 1114, the words declared on were, "You (the plaintiff meaning) have been going with Edd (meaning one E. C.). You (the plaintiff meaning) matched him in the berry patch on the bluff, and here upstairs, and I saw you go up." The court said: "The question arising is, do the words set forth in the complaint charge sexual intercourse? We think not. Words are to be construed in the plain, popular sense in which people would naturally understand them. Bradley v. Cramer, 59 Wis. 309, 18 N.W. 268, 48 Am. Rep. 511. We are not aware that the word 'match,' or 'matched,' has ever acquired the meaning of illicit or sexual intercourse. It is sometimes used as denoting honorable marriage, but the lexicographers go no further. If there was a local or provincial use of the word which gave it the meaning contended for, or if there were extrinsic circumstances by reason of which it was so understood by the hearers at the time the words were uttered, these facts should be alleged by way of inducement. Newell, Slander and Libel (2d Ed.) 603. The innuendo cannot enlarge the natural and ordinary meaning of the words." If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts or circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment. Ency. Pl. & Prac. vol. 13, p. 32. Words will not be construed to impute unchastity, if in their milder sense they may have another harmless meaning, unless it is made to appear by the averment of extrinsic facts that the defendant meant to traduce the character of the plaintiff for chastity. ...