Cosand v. Lee

• Decision Date: 27 November 1894
• Citation: 38 N.E. 1099,11 Ind.App. 511
• Parties: COSAND v. LEE.
• Court: Indiana Appellate Court

11 Ind.App. 511

38 N.E. 1099

COSAND

v.LEE.

Appellate Court of Indiana.

Nov. 27, 1894.

Appeal from circuit court, Boone county; Stephen Neal, Judge.

Action by Flora E. Lee, by next friend, against Susan Cosand, for slander. There was a judgment for plaintiff, and defendant appeals. Reversed.

Damell, Ralston & Keefe, for appellant. Harrison, Adams & Carter, for appellee.

REINHARD, J.

This is an action of slander. The first error assigned is the overruling of the appellant's demurrer to the appellee's complaint. The first objection urged to the complaint is that it does not show the plaintiff to be a female. The complaint begins thus: “The plaintiff, Flora E. Lee, suing by her next friend,” etc. The feminine gender is employed throughout the complaint in the use of the pronoun referring to the plaintiff. We think it sufficiently designates the plaintiff as a female.

It is next objected that the words charged to have been spoken of the appellee are not actionable per se. It is averred in the complaint that the appellant, maliciously intending to injure the good name of the appellee, and to cause it to be believed that she had been guilty of the crime of having had illicit intercourse with men, on the 12th day of October, 1893, in a certain discourse, at Boone county, Ind., which the appellant then had of and concerning the appellee, and in the presence and hearing of divers good people, falsely and maliciously spoke of and concerning the appellee the following false, scandalous, and malicious words, to wit: “Ah, Flora [meaning the plaintiff], you want to come home, and have another young one, like you did last summer,”-intending thereby to and charging the appellee with having been guilty of having had illicit sexual intercourse with men, and of having become pregnant, and of having given birth to an illegitimate child. “Ah, Flora [plaintiff meaning], you want to come home, and lose another young one, like you did last summer,”-intending thereby to charge the appellee with having been guilty of having had illicit sexual intercourse with a man, and of having become pregnant, and having given birth to an illegitimate child. It is also alleged that the appellee is, and always has been, unmarried, and is under the age of 21 years. A demurrer was addressed separately to each set of words. The appellant's counsel contend that the words in neither set are actionable, because they do not charge a crime. This is not necessary. “Every charge of incest, fornication and adultery or whoredom falsely made by any person against a female * * * shall be actionable in the same manner as in the case of slanderous words charging a crime, the commission of which would subject the offender to death or other degrading penalties.” Rev. St. 1894, § 286 (Rev. St. 1881, § 285). If the words are sufficient to charge the appellee with incest, fornication, adultery, or whoredom, they are actionable, whether they charge a crime or not. It was not necessary to aver that the words had a provincial or local meaning. The inducement and innuendo laid in the complaint show that the words were spoken of and concerning the plaintiff, and in the presence and hearing of divers good people, and with the intention and to cause it to be believed that she had been guilty of having had illicit sexual intercourse with a man, or with men, and of having become pregnant, and given birth to an illegitimate child. This is a sufficient averment that the words were spoken in a slanderous sense, and if they were so intended, and can be given that construction, and were so understood, it matters not whether they were actionable per se or not; they will be sufficient. When the words alleged to have been spoken are capable of two constructions, one of which would be innocent, it is for the jury to determine whether they were used and understood in that sense or otherwise. Waugh v. Waugh, 47 Ind. 580. In Branstetter v. Dorrough, 81 Ind. 527, it was said: “We need not determine whether the words are or are not slanderous per se, for the inducement and innuendo clearly show that they were uttered slanderously, and are actionable.” In the same case the following quotation from Fortescue, J., in Button v. Heyward, 8 Mod. 24, was approved by the court: “It was the rule of Holt, C. J., to make words actionable whenever they sound to the disreputation of the person of whom they were spoken; and this was also Holes and Twischer's rule, and I think it a very good rule.” The court then continues to say: “Charges of unchaste conduct are seldom made in plain words. They are almost always made by indirection and...