Cooper v. Seaverns

• Decision Date: 11 December 1909
• Docket Number: 16,080
• Citation: 105 P. 509,81 Kan. 267
• Parties: FANNIE M. COOPER, Appellant, v. SUSAN SEAVERNS, Appellee
• Court: Kansas Supreme Court

105 P. 509

81 Kan. 267

FANNIE M. COOPER, Appellant, v. SUSAN SEAVERNS, Appellee

No. 16,080

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Wallace district court; JACOB C. RUPPENTHAL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. SLANDER--Charge of Unchastity--"Dirty Slut." According to their usual, popular and natural signification the words "dirty slut," spoken of a woman, do not of themselves impute unchastity.

2. SLANDER--Pleading--Innuendo. In an action for slander based on the words referred to their meaning can not be expanded to include unchastity merely by the innuendo of the petition. If in the light of the occasion and circumstances of their utterance they conveyed such a meaning the extrinsic facts showing they were defamatory should be pleaded in the prefatory part of the petition.

3. SLANDER--Sufficient Charge of Unchastity. The following words spoken of a married woman--"I suppose that you have heard the slander that's going about the Coopers; that little girl was born within four or five months after they were married; now what do you think of them?"--fairly mean the woman's child was begotten out of lawful wedlock and that she had been guilty of a breach of chastity.

4. SLANDER--Allegation and Proof of Special Damages--Common-law Rule. The rule of the common law that spoken words imputing unchastity to a female are not actionable without allegation and proof of special damages took its rise in England from conditions peculiar to that country and is based upon reasons which are not apposite under the legal institutions of this state. It is out of sympathy with the true spirit of the bill of rights, lacks the sanction of justice and right, and does not apply to the conditions or meet the needs of the people of this state.

5. COMMON LAW--Statute Continuing it in Force--Limitation. Under the statute of 1868 (Gen. Stat 1901, § 8014), which governs the matter, the common law of England remains in force in this state in aid of the general statutes only so far as it is not modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people.

6. COMMON LAW--Modification of Common Law a Judicial Question. It is a judicial question whether the common law invoked in a judicial proceeding has been modified by any of the means pointed out in the statute, and consequently to what extent it remains in force in this state.

7. SLANDER--Charge of Unchastity Actionable without Alleging Special Damages. The rule of the common law referred to in paragraph 4 is not a part of the law of this state, and spoken words imputing unchastity to a female are actionable without allegation or proof of special damages.

W. S. Roark, for the appellant.

Lee Monroe, and George A. Kline, for the appellee.

OPINION

BURCH, J.:

The action in the district court was one for slander. The petition contained two counts. In the first count it was charged that the defendant said the plaintiff is a "dirty slut." The innuendo was that the words meant the plaintiff is an unchaste woman. In the second count it was charged that the defendant spoke of the plaintiff as follows: "I suppose that you have heard the slander that's going about the Coopers; that little girl was born within four or five months after they were married; now what do you think of them?" The innuendo was that the words meant that the plaintiff's first child was begotten out of lawful wedlock and that the plaintiff had been guilty of a breach of chastity. No special damages were alleged. A demurrer was sustained to the petition, and the plaintiff appeals.

Formerly it was held in slander cases that the words spoken were to be construed in their mildest sense, but that doctrine has long since been abandoned. They should be given their usual, popular and natural meaning, according to the circumstances under which they were used, on the assumption that the hearer so understood them. The words "dirty slut" do not import unchastity. None of the dictionaries assigns to them any such signification. In the Century Dictionary, which is usually careful to give all extensions of meaning beyond the ordinary, the word "slut" is defined and its use is illustrated as follows:

"1. A careless, lazy woman; a woman who is uncleanly as regards her person or her house; a slattern; often used as a name of contempt for a woman and (formerly) also for a man. See sloven.

"Our radiant queen hates sluts and sluttery."--Shak., M. W. of W., v. 5, 50.

"2. A young woman; a jade; a wench: used lightly.

"Our little girl Susan is a most admirable slut, and pleases us mightily, doing more service than both the others."--Pepys, Diary, Feb. 21, 1664.

"You see now and then some handsome young jades among them (Gipsies); the sluts have very often white teeth and black eyes."--Addison, Spectator, No. 130.

"3. An awkward person, animal, or thing.

"Crabbe is a slutt to kerve, and a wrawd wight;

Breke euery clawe a sondur."

--Babees Book (E. E. T. S.), p. 158.

"4. A female dog; a bitch.

"'You see I gave my cousin this dog, Captain Woolcomb,' says the gentleman, 'and the little slut remembers me.'"--Thackeray, Philip, xiii."

While quoting from the masters of English speech the editors of this work might have given space to the one from whom every child's notion of the words in question is obtained:

"See-saw, Margery Daw,

Sold her bed and lay upon straw;

Was not she a dirty slut,

To sell her bed and lie in the dirt?"

--Mother Goose.

The latest authoritative standard, Webster's New International Dictionary (1909), notes no enlargement of the foregoing meanings, and the courts have recognized none except where the circumstances and connection so indicated. (25 Cyc. 322, and cases cited.)

The plaintiff says, however, the meaning of the defendant's language was properly expanded to include a slanderous imputation by means of the innuendo. The innuendo performs no such service. It can not extend or add to the sense of words. If the words themselves are defamatory, no innuendo is necessary. If they are not themselves defamatory, and become so only in the light of the occasion and circumstances of their utterance, the extrinsic facts showing the meaning actually conveyed must be stated in the prefatory part of the pleading and not in the innuendo. If the words alone or the words illuminated by circumstances duly pleaded be not defamatory, the innuendo can not make them so. If the words alone or the words explicated by the attendant facts be susceptible of more than one meaning, or be ambiguous or equivocal, the innuendo may assign the true meaning the plaintiff believes they should bear. But in no case can it introduce new facts, and it serves merely to connect, explain and apply what precedes it in the statement of the cause of action. (1 Cooley, Torts, 3d ed., p. 414; 25 Cyc. 449; 13 Encyc. Pl. & Pr. 49.) In this case no facts were alleged showing that the words forming the basis of the first count of the petition bore other than their usually accepted signification, and the introduction of a broader meaning in the innuendo alone was not permissible.

"Several sets of words are set out in the declaration as being false, scandalous, malicious and defamatory, and, among others in the second count, are the following: 'She is a dirty bitch.' 'She is a dirty slut.' 'She is a dirty, lying slut.' 'She is a filthy, lying slut.' These words are laid without any colloquium going to show that they were used and understood in a slanderous sense. They must, therefore, be taken in their common acceptation. . . . The word 'slut,' according to Webster, means an untidy woman, a slattern, and also a female dog, the same as 'bitch.' While such terms undoubtedly are coarse, vulgar and brutal, when applied to a woman, they do not amount to a charge of crime or of want of chastity, and are not, therefore, in their common meaning, slanderous words." (Roby v. Murphy, 27 Ill.App. 394, 397, 398.)

According to the rule of interpretation already stated, the defendant's assertion respecting the plaintiff appearing in the second count of the petition fairly conveys the meaning assigned to it in the innuendo, and the question arises whether words imputing want of chastity to a woman are actionable in this state without an allegation of special damages.

The common law of England was that verbal imputations of unchaste conduct on the part of a female were not actionable, in the absence of special damages, unless they related to a person in some office or employment for which morality and virtue were qualifications (Folkhard, Law Slan. & Lib., 7th ed., p. 43), and except in the local courts of the city of London, the borough of Southwark and the city of Bristol, where it was the custom to whip strumpets at cart's tail, tingling a basin before them (Odgers, Lib. & Slan., p. *84). Ths rule has been accounted for on the supposition that in the early, formative days of the common law social relations were rude, manners were unrefined, and the people were accustomed to hearing gross and vulgar epithets freely tossed about without regarding them seriously. (Odgers, Lib. & Slan., *p. 86.) The case of Oxford & ux. v. Cross, in the king's bench, Trinity term, 41 Elizabeth (1599), Coke's Reports (vol. 2, p. 307; part 4, p. 18a), is cited in support of this view, wherein it was said that a custom "to maintain actions for such brabling words is against law." Pollock and Maitland discover a better state of civilization from the early records than the view indicated takes for granted:

"We should be much mistaken, however, if we believed that the temporal law of the middle ages gave no action to the defamed. Nothing could be less...