Douglas v. Douglas

• Decision Date: 17 January 1895
• Citation: Douglas v. Douglas, 4 Idaho 293, 38 P. 934 (Idaho 1895)
• Parties: DOUGLAS v. DOUGLAS
• Court: Idaho Supreme Court

38 P. 934

4 Idaho 293

DOUGLAS v. DOUGLAS

Supreme Court of Idaho

January 17, 1895

ADULTERY-PROSTITUTION-FORNICATION-ONLY THE LATTER ACTIONABLE.-The charge that a woman is a "public prostitute" is not actionable per se under the statutes of Idaho, neither adultery, fornication, nor prostitution being punishable as such by the statutes of Idaho.

EVIDENCE-WITNESS MAY BE ALLOWED TO EXPLAIN LETTER.-Where, for the purpose of discrediting a witness, a letter written by such witness is introduced, to refuse such witness an opportunity to explain such discrepancy is error.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Demurrer to the complaint sustained. Judgment reversed and cause remanded, with direction. Costs to appellant.

T. L Glenn and E. E. Chalmers, for Appellant (Williams Van Cott &amp Sutherland, of Counsel).

The words "public prostitute" do not "necessarily and by reasonable intendment charge the plaintiff with" being a vagrant, and therefore they are not actionable per se, but special damages must be alleged and proved to warrant a recovery. At common law these words would not have been actionable per se, and they can now only be so held on the theory that they charge an indictable crime involving moral turpitude or would subject the accused to an infamous punishment. (Pollard v. Lyon, 91 U.S. 225; Davis v. Sladden, 17 Or. 259, 21 P. 140; Brooker v Coffin, 5 Johns, 190, 4 Am. Dec. 337; McKee v. Wilson, 87 N.C. 300; Cooley on Torts, 196-198, notes; 13 Am. & Eng. Ency. of Law, 349, note 3, 350; Melvin v. Waiant, 36 Ohio St. 184, 38 Am. Rep. 572; Berry v. Carter, 4 Stew. & P. 387, 24 Am. Dec. 762; 1 Am. Lead. Cas. 102-104.) In a leading case on this subject the words, "She is a common prostitute" were held not actionable per se, though common prostitutes were adjudged disorderly persons and liable to imprisonment for sixty days. This case is on all-fours with the one at bar and has been repeatedly approved by the highest courts. (Brooker v. Coffin, 5 Johns. 188, 4 Am. Dec. 337; McKee v. Wilson, 87 N.C. 300. See Pollard v. Lyon, 91 U.S. 225.) A letter from J. R. Brennan was introduced in evidence to impeach or qualify his testimony, the witness stating that the letter expressed the truth when written. On redirect examination, defendant asked this witness: Q. Under what circumstances was this letter written? Q. For what purpose was it written? These questions in principle have been expressly ruled upon and held admissible. (Hawley v. Corey, 9 Utah, 175, 33 P. 697; 1 Greenleaf on Evidence, secs. 286, 287.)

James H. Hawley, W. T. Reeves, and Alfred Budge, for Respondent.

It is not necessary that the language used should charge the offense with technical accuracy, as would be required in an indictment. Words calculated to induce hearers to believe that the person of whom they are spoken is guilty of a crime in this respect are sufficient. (Frolich v. McKiernan, 84 Cal. 177, 24 P. 114; Wilson v. McCrary, 86 Ind. 170; Zeleff v. Jennings, 61 Tex. 458; Rev. Stats., sec. 4215.) Words calculated to induce the hearer to suspect that plaintiff was guilty of the crime charged are actionable per se. (Drummond v. Leslie, 5 Blackf. (Ind.) 543; Dorland v. Patterson, 23 Wend. 422.) As the words alleged impute that plaintiff has been guilty of a crime punishable with imprisonment, they are actionable without alleging or proving special damages. (Pollard v. Lyon, 91 U.S. 225; Townshend on Slanders, sec. 154; Blumhardt v. Rohr, 70 Md. 328, 17 A. 266.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The plaintiff brings this action against the defendant to recover damages for certain alleged slanderous words charged to have been uttered by the defendant of and concerning the plaintiff. Defendant demurred generally to the complaint, which demurrer was overruled, and exception taken by defendant to such ruling. The words charged in the complaint as having been uttered by the defendant are as follows: "That woman [meaning the plaintiff] is a woman of shady character. Mrs. Douglas is a public prostitute. She slept with my brother before she married him, and I can prove it. I proclaim this before God and man." The complaint is drawn and the action prosecuted upon the theory that the words set forth as having been uttered by the defendant are actionable per se. No claim for special damages is set up in the complaint, nor were any special damages proved or attempted to be on the trial. Verdict was rendered in favor of plaintiff. Motion for new trial was made by defendant, and denied, and this appeal is taken from both the judgment and the order overruling motion for new trial.

The principal question presented by the record is, Are the words set out in the complaint actionable per se? The solution of this question depends mainly, if not entirely upon the provisions of the statute of this state. Neither prostitution, adultery, nor fornication, as such, are punishable as crimes or offenses under the statutes of this state. The rule as laid down by the supreme court of New York in Brooker v. Coffin, 5 Johns. 190, 4 Am. Dec. 337, has, we believe, been very generally accepted and approved, and is as follows: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject the party to an infamous punishment, then the words will be in themselves actionable." (Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Van Ness v. Hamilton, 19 Johns. 349; Widrig v. Oyer, 13 Johns. 124; Martin v. Stillwell, 13 Johns. 275, 7 Am. Dec. 374, and many other cases decided by that court.) Referring to this rule, Judge Cooley, in his work on Torts, at page 197, says: "This test has been accepted and applied so often and so generally that it may now be accepted as settled law." We understand that counsel for respondent does not contest this rule, but denies its applicability in this case, because section 7208 of the Revised Statutes of Idaho in defining who are vagrants, declares, inter alia, that "every common prostitute is a vagrant, and is punishable by imprisonment in the county jail not exceeding ninety days"; and claims as a necessary or legitimate correlation that the charge of being a "public prostitute" includes the charge of vagrancy. It seems to us that the acceptance of this contention would involve the recognition of a rule of vicarious construction scarcely justifiable in any case. There is nothing in the words charged to have been uttered by the defendant which can possibly be distorted into an intention on his part to charge the plaintiff with vagrancy, or with being a vagrant; nor is it conceivable that they were either intended, or were accepted by the plaintiff or anyone else who heard them, in any such sense. Judge Cooley, in discussing this subject in his work on the Law of Torts, uses the following language: "Whatever the moral turpitude involved in the act, it is generally agreed that it is not actionable per se to charge it if it is indictable, even though it be punishable as disorderly conduct. Therefore, to charge a woman with being a common prostitute is held not actionable without averment of special damage, though it is difficult to conceive that any other charge can be more likely to injure, and the conduct itself is punishable as vagrancy." (Cooley on Torts, and the cases cited in note.) We might suggest, in this connection, that vagrancy is not, in the sense in which it is generally used and accepted, "a crime necessarily involving...