Griffin v. Moore

• Decision Date: 24 June 1875
• Citation: 43 Md. 246
• Parties: CHARLES GRIFFIN and MARY ANNE GRIFFIN, his Wife v. JAMES A. MOORE.
• Court: Maryland Court of Appeals

43 Md. 246

CHARLES GRIFFIN and MARY ANNE GRIFFIN, his Wife v. JAMES A. MOORE.

Court of Appeals of Maryland

June 24, 1875

APPEAL from the Baltimore City Court.

The nature of this case is stated in the opinion of the Court.

First Exception.--After the plaintiffs had given evidence tending to prove that about the 1st of August, 1872 the defendant sent a man to the house of the plaintiff, Mrs Griffin, stating it to be a house of ill-fame and kept by a Mrs. Burns, a whore, the plaintiffs moved to amend their declaration by substituting the name of "Mrs Burns" in the place of "Jack Dill," wherever therein mentioned; the motion was granted and the amendment made. The trial was then proceeded with, until the witness who testified as above, had finished her examination-in-chief and had been cross-examined, and two other witnesses for the plaintiffs had been examined-in-chief and cross-examined, when the defendant moved to amend his pleadings by pleading the Statute of Limitations; the plaintiffs objected, but the Court, (BROWN, J.,) overruled the objection and allowed the plea to be filed. The plaintiffs excepted.

Second Exception.--The defendant asked the Court to instruct the jury as follows:

1st. That the jury under the plea of Limitations filed in the cause, are not at liberty to take into consideration any evidence offered to sustain the second count in the declaration, and they are not at liberty to find for the plaintiffs on said count.

2nd. That the several words complained of in the mode and manner set forth in the first and third counts of the declaration, are not, if proved to have been spoken as alleged, sufficient of themselves to maintain this action, and therefore the verdict must be for the defendant.

This instruction the Court gave, and the plaintiffs excepted.

A verdict was rendered for the defendant under the instructions of the Court, and judgment was entered accordingly. The plaintiffs appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON, ALVEY and ROBINSON, J.

William Rowland and William H. S. Burgwyn, for the appellants.

The plea of the Statute of Limitations is not a plea to the merits; the Acts of Assembly of this State, while providing for the greatest latitude in amendments, have expressly excluded pleas of the Statute of Limitations. Code, Art. 75, sec. 31.

The Court of Appeals has adjudged the plea of Limitations not to be a plea to the merits, and the universal practice has accordingly been never to permit it to be amended nor to be filed after the rule day. Rules 6 and 8 of Baltimore City Court; Kunkel vs. Spooner, 9 Md., 472; Lamott vs. McLaughlin, 3 H. & McH., 324; Wall vs. Wall, &c., 2 H. & G., 81; Nelson vs. Bond, 1 Gill, 218.

So also the plea of Limitations cannot be amended, though the amended plea is filed before the rule day has expired. State vs. Green, 4 G. & J., 381.

The fact that the appellants were allowed to amend the second count of their declaration, did not give the appellee the right to file the plea of Limitations.

The privilege of amendment is given by Act of Assembly, that causes may be tried on their merits, and unless the amendment is material and changes the issue, it does not let in the plea of the Statute of Limitations. Adams Ex. Co. vs. Trego, 35 Md., 61; Borden Mining Co. vs. Barry, 17 Md., 431; Farmers' Bank vs. Sprigg, 11 Md., 389; Burtles vs. State, 4 Md., 273; Wright vs. Hollinsworth's Lessee, 1 Peters, 167.

The plea of the Statute of Limitations filed in this case purports to go to the whole declaration, whereas it can only be applicable to the second count. When a plea is only intended for a part of the declaration, the rule is, it must not cover the whole but ascertain the part to which it is applied. Crain vs. Yates, 2 H. & G., 332.

It is actionable per se to say of a married woman in the public streets of a populous city, that she is a damned whore. His honor below considered this question settled to the contrary by the case of Wagaman vs. Byers, 17 Md., 183.

It is submitted that the points of difference in the two cases are numerous. In the case of Wilson vs. Robbins, Wright, N. P., (Ohio,) 40, it was held not actionable to charge a man with adultery, though it is to charge a woman with adultery, because of the tendency of such a charge to exclude her from society. This case asserts that there is a difference in the odium attached to the slander where the charge of want of chastity is made of a woman, and when made of a man, and that consequently there is a difference in the legal consequences that attach to one making such a charge. The Legislature of Maryland has recognized this difference, and after the decision of the Court of Appeals, in the case of Stanfield vs. Boyer, 6 H. & J., 248, (1824,) to the effect that words tending to charge an unmarried woman with fornication are not actionable, passed the Act of 1838, ch. 114, making all words spoken maliciously touching the character or reputation for chastity of a femé sole, slanderous.

1 Hilliard on Torts, 284, says: "With regard to the charge of want of chastity, it is now the prevailing doctrine that it is actionable to call a woman a whore." Smith vs. Minor, 1 Coxe, (N. J.,) 16; Miller vs. Parish, 8 Pick., 384.

It seems to have been determined otherwise in New York, as in Brooker vs. Coffin, 5 John., 188, though such a case falls within the rule for supporting such actions. It has always been the law in this commonwealth, and is so in New Hampshire and Connecticut. Woodbury vs. Thompson, 2 N. H., 194; Frisbie vs. Fowler, 2 Con., 707; True vs. Plumley, 36 Maine, 466.

But whatever may be the common law with reference to unmarried women--it has been repeatedly held in England as well as in this country, that it is actionable to call a married woman a whore. 1 Starkie on Slander, 179; Baldwin vs. Flower, 3 Mod., 120; Saville vs. Kirby, 10 Mod., 385; Ricket and Wife vs. Stanley, 6 Black., (Ind.,) 169; Smith vs. Silence, 4 Iowa, 322.

In the present case, the charge against the plaintiff's wife was not simply that of being a whore, but it was accompanied with the additional accusation of running away with the speaker's boy. Gavell vs. Berked, 1 Mod., 22; Dimock vs. Fawcett, Cro. Car., 393; Hick vs. Joyce, Styles, 394.

William A. Stewart, for the appellee.

The defendant seems to have mistaken the identity of the plaintiff, Mary Ann, and in conversation with parties, who knew his mistake, said that she was another person who had done him grievous wrong, and there being no special damage alleged, and no attempt to prove any, the words spoken not being sufficient of themselves to maintain the action, the Court properly instructed the jury that the plaintiffs could not recover under the first and third counts of the declaration. Dorsey vs. Whipps, 8 Gill, 457; Terry vs. Bright, 4 Md., 430; Wagaman vs. Byers, 17 Md., 183; Jones vs. Hungerford, 4 G. & J., 402; Sheely vs. Biggs, 2 H. & J., 363; Stanfield vs. Boyer, 6 H. & J., 248.

The words contained in the second count are not actionable, and the Court properly allowed the defendant to file the plea of Limitations after the declaration had been so materially amended that no evidence could otherwise have been offered under it, and if it were not a matter of right, it was at least, a matter resting in the sound discretion of the Court, and after joinder of issue on said plea, if any irregularity as to filing the same, had existed, it was thereby waived. Summers vs. Foote, 28 Miss., 671; Shaw vs. Brown, 42 Miss., 309; Mitchell vs. Sellman, 5 Md., 376; Stockett vs. Sasscer, 8 Md., 374; Gilchrist vs. Gilchrist's Ex., 44 How. Pr. Reps., 317.

ROBINSON J., delivered the opinion of the Court.

The appellants, plaintiffs below, sued the defendant, for slanderous words spoken by him, concerning the reputation for chastity of the plaintiff's wife.

The declaration contains three counts. The first and third charges the defendant with saying publicly, in June, 1874, of the plaintiff's wife, as she passed the defendant on the street, in the city of Baltimore, "There goes that damned whore, Jack Dill, who ran away with my boy."

The second count charges that the defendant, in the summer of 1872, sent a stranger to the house of the plaintiffs, saying to him at the time, that it was a "house of ill-fame, and kept by a whore named Mrs. Burns."

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