Davis v. Sladden

Decision Date15 January 1889
Citation17 Or. 259,21 P. 140
PartiesDAVIS v. SLADDEN.
CourtOregon Supreme Court

Appeal from circuit court, Lane county.

Action by May Davis against S.P. Sladden for slander. Judgment for plaintiff, and defendant appeals.

(Syllabus by the Court.)

At common law there was no redress for defamatory words, unless they imputed a crime, or related to a man's profession or trade, or caused some special damage. [2]

Words spoken imputing to a female adultery or fornication or incontinence in any form were not actionable, unless special damage ensued which was required to be alleged and proved. [2]

Defamation was a subject of spiritual censure, the remedy for common bad language being in the ecclesiastical courts, and the fact that it was so explains the reason of the rule as it exists at common law.

Adultery being a spiritual offense, cognizable only in the ecclesiastical courts, and the punishment being confined to the infliction of penance " pro salute animae," it resulted, to avoid punishing a party twice for the same words, that to charge a married woman with adultery was not actionable per se, and that no redress could be obtained therefor at common law without special damage is shown.

And this is the rule applied to the several states in which the common law prevails, where such offenses as adultery and fornication have not been made indictable by statute.

Words then, are actionable in themselves only where an offense is imputed by them for which the party is liable to indictment and punishment, either at common law or by the statute. [2]

To say of a married woman that she is a prostitute is necessarily to impute to her the guilt of adultery, and, as under our Criminal Code adultery is indictable and punishable, such words charge a crime, and are actionable per se. [2]

ON REHEARING.

Slanderous words cannot be justified by proof that the defendant only repeated what he heard another person say concerning the plaintiff.

C.B. Bellinger, L. Bilyeu, and Washburn & Woodcock, for appellant.

S.W. Condon, Geo. A. Dorris, and J.K. Weatherford, for respondent.

LORD, J.

This is an action for slander. The complaint alleges that the defendant, in the presence and hearing of L.B. Rossman and other persons falsely and maliciously spoke of and concerning plaintiff as follows: "Fenton sent those two prostitutes to talk with my wife;" meaning this plaintiff and her mother. And at the same time and place as follows: "Do you think more of the little fee you will get out of these low, disreputable people [meaning the plaintiff] than you do of the friendship of my wife?" And as follows, "If you bring my wife into court against this prostitute, [meaning the plaintiff,] she nor none of our family will ever speak to you again;" and, "My wife would not have that prostitute on her land, [meaning by 'that prostitute' the plaintiff;] not for any money. All the neighbors are complaining about it now. You reside in that neighborhood yourself, and cannot afford to have such people there." That at the time of uttering said words by the defendant the plaintiff was and now is a married woman, and has a husband living, and has ever borne a good name and character above reproach, etc. The complaint does not allege special damages resulting from the speaking of the words by the defendant and the only question raised is, are the words charged actionable per se?

The distinction--early taken in the law--between words actionable and words not actionable in themselves is that in the former the law adjudges them to be injurious, though no special loss can be proved, while in the latter, in addition to the words it was necessary for the plaintiff to allege and prove special damages. The more difficult and vexed question, however, has been to determine what words were actionable per se. It was said by SPENCER, J., that "there is not, perhaps, so much uncertainty in the law upon any subject as when words shall be in themselves actionable," ( Brooker v. Coffin, 5 Johns. 192;) and it may have been for some such reason that HOLT, C.J., more than a century before, was led to say that "it was not worth while to be learned on this subject," ( Baker v. Pierce, Holt, 654, 655.) At common law there was no redress for defamatory words, unless they imputed a crime, or related to a man's trade or profession, or caused some special damages. It mattered not that the words spoken involved an attack on personal character, or how gross the immorality or moral delinquency imputed by them, unless they charged a crime, such words were only actionable when special damage ensued. The rule as laid down by Starkie is that "no charge upon the plaintiff, however foul, will be actionable, unless it be an offense punishable in a temporal court of criminal jurisdiction." 1 Starkie, Sland. 21. Except when applied to a person in his calling, or the conduct of his business, as to say of a man he is a "cheat" or a "swindler," (Chase v. Whitlock, 3 Hill, 139; Weierbach v. Trone, 2 Watts & S. 408; Odiorne v. Bacon, 6 Cush. 185,) or a "damned rogue," ( Oakley v. Farrington, 1 Johns.Cas. 129; Caldwell v. Abbey, Hardin, 539,) or a scoundrel or "blackleg," (Van Tassel v. Capron, 1 Denio, 250; Stevenson v. Hayden, 2 Mass. 406; Ford v. Johnson, 21 Ga. 399; Artieta v. Artieta, 15 La.Ann. 48,) is not actionable. Nor were words imputing to a female adultery or fornication or a want of chastity in any form actionable, unless special damage ensues and is shown. Gascoigne v. Ambler, 2 Ld.Raym. 1004; Graves v. Blanchet, 2 Salk. 696; Allsop v. Allsop, 5 Hurl. & N. 534; Wilby v. Elston, 65 E.C.L. 141; Brooker v. Coffin, 5 Johns. 188; Buys v. Gillespie, 2 Johns. 115; Stout v. Wood, 1 Blackf. 71; Elliott v. Ailsberry, 2 Bibb, 473; Beach v. Ranney, 2 Hill, 309; Woodbury v. Thompson, 3 N.H. 194; Starkie, Sland. 166; Townsh. Sland. & Lib. § 172.

Except in London and some other particular places, it is the settled law of England that to charge a woman with incontinence or adultery is not actionable at common law unless special damage is alleged and proved. So discreditable was the state of the law in that country in making it so difficult for a female to obtain redress for slanders on her moral character that Lord BROUGHAM was induced to say: "I may lament the unsatisfactory state of our law, according to which the imputation by words, however gross, on an occasion, however public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that it has actually produced special temporal damage to her, but I am here only to declare the law." Lynch v. Knight, 9 H.L.Cas. 592. The reason of this principle is ascribed to the fact that originally the remedy for common bad language was in the ecclesiastical courts. Defamation was a common subject for spiritual censures, and Mr. Justice Stephen says: "And the fact that it was so explains the rule of the common law that no action lies for words spoken unless they impute a crime, or relate to a man's profession or trade, or cause special damage." 2 Steph.Dig.Crim.Law, 409. In Palmer v. Thorpe, 4 Coke, 20, it is said: "Touching defamations determinable in the ecclesiastical court, it was resolved, that such defamations ought to have three incidents: (1) That it concerns matters merely spiritual and determinable in the ecclesiastical court, as for calling him heretic, schismatic, adulterer, fornicator," etc. The application of this principle is well illustrated in Byron v. Emes, 12 Mod. 106, in an action on the case for saying a woman had a bastard, etc., where it was moved, in arrest of judgment, that the words are not actionable, because they are of spiritual conusance, and no temporal loss accrues; and the court say: "These words are most scandalous of a young woman, so that were it res nova, perhaps, an action would lie; but there are many authorities to the contrary. It is a crime of which the ecclesiastical court has conusance and can censure, and it is not reasonable that the party should be liable to defamation and an action, too." As a consequence, to avoid punishing a party twice for the same words the temporal courts held that such words were not actionable per se. Adultery, then, being a spiritual offense, cognizable only in the ecclesiastical courts, and the punishment being confined to the infliction of penance pro salute animae, it resulted that to charge a married woman with adultery was not actionable per se, and that no redress could be obtained therefor at common law without special damage ensues, which must be alleged and proved. And this is the law, with few exceptions, in the several states in which the common law prevails in this country, where such offenses as adultery and fornication have not been made indictable by statute. It must then be the law in this state, unless, by force of legislative sanction, the words alleged impute a crime involving moral turpitude. Tested, therefore, by the common law, the words alleged are not actionable per se, and as no special damage is alleged no case is stated. But, as the offense of adultery is now made by our Criminal Code an indictable felony,--a punishable offense involving moral turpitude,--the inquiry now is, do the words spoken and alleged, necessarily and by reasonable intendment, charge the defendant with the crime of adultery? for, if they do, the words are actionable per se, and a case is stated, though no special damage is alleged.

By reference to the complaint it will be seen that the word forming the gist of the action is the word "prostitute," several times repeated, and applied to the plaintiff. If the word "prostitute," as thus applied to the plaintiff, implies the crime of adultery, then the word is actionable per se, and no special damage need...

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  • State v. Gardner
    • United States
    • Iowa Supreme Court
    • 14 Marzo 1916
    ...sexual intercourse for gain (Carpenter v. People [N. Y.] 8 Barb. 603, 611;State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716;Davis v. Sladden, 17 Or. 259, 21 Pac. 140, 142). “Prostitution” in its more restricted sense is the practice of a female offering her body to an indiscriminate intercourse ......
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