Guard v. Risk

• Decision Date: 26 November 1858
• Citation: 11 Ind. 127
• Parties: Guard v. Risk
• Court: Indiana Supreme Court

11 Ind. 127

Guard v. Risk

Supreme Court of Indiana

November 26, 1858

From the Jefferson Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

C. E Walker and H. W. Harrington, for appellant.

OPINION

Davison, J.

Action of slander by Lucinda Risk against William N. Guard. The complaint charges that the defendant, on, &c., at &c., spoke the following false and slanderous words of the plaintiff, viz.: "That he could prove that Lucinda Risk [meaning the plaintiff] slept with George Vestill two nights; and that we all know that she [meaning the plaintiff] had the bad disorder, by the scales which she [meaning the plaintiff] had on her face." Thereby meaning that she, the plaintiff, had committed fornication, whereby she is damaged, &c.

The answer contains--1. A general denial; 2. The statute of limitations; 3. A justification.

Replies in denial of the first and second paragraphs.

The issues were submitted to a jury, who found for the plaintiff 775 dollars. Motions for a new trial, and in arrest, overruled, and judgment on the verdict.

The evidence being closed, the court instructed the jury "That the words 'we all know that she had the bad disorder by the scales which she had on her face,' are not actionable." To this ruling there was no exception; hence the class of words to which the instruction relates are not in the case before us. Are the remaining words, viz., "that he could prove that she, the plaintiff, had slept with George Vestill two nights," actionable? If they are, they must be so per se; because, in the complaint there is no averment of extrinsic facts, or of a colloquium in reference to such facts. But it seems to us that the words themselves sufficiently impute the want of chastity in the plaintiff, and are, therefore actionable without the aid of such averment or such colloquium. Shields v. Cunningham, 1 Blackf. 86, is in point. There the words charged were these; "Doctor Eddy made an appointment with Elizabeth Cunningham [meaning the plaintiff], scaled the walls and went to bed to her at Mrs. Reperton's house." These words were held actionable. And in the opinion given in the case, Judge Scott says: "The words laid in the declaration clearly import a charge of fornication. A phraseology more indecent might have been used; but no set of words, however plain and explicit, would have conveyed the idea with more certainty, or have been productive of a result more mischievous and fatal in its consequences." In the case at bar, the words charged are equally clear and effective. Indeed, their import is too obvious to admit of any mistake as to their meaning.

But the complaint is said to be defective, because it fails to allege that the words were published. This position, anterior to the revision of 1852, would have been tenable; but in that revision there is a statute which enacts that in actions for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken by the plaintiff, and if the allegation be denied, the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him. 2 R. S. p. 45, § 86. Thus, it seems that the plaintiff, in an action for slander, may allege, generally, that the slanderous words were spoken of himself without any averment as to their publication. We are of opinion that the facts stated in the complaint are sufficient to constitute a cause of action. Consequently the motion in arrest was correctly overruled.

At the proper time, the defendant moved to instruct the jury as follows:

"1. That the plaintiff can only recover the actual damages which, under the circumstances, they shall find she has sustained in consequence of the speaking of the words.

"2. That the jury cannot give a verdict for smart-money beyond what they find as the damages really sustained by the plaintiff, by way of punishing the defendant solely."

The record says that these instructions were refused, for the reason that the phrase "actual damages," in the first, and the words "damages really sustained," in the second, were calculated to mislead the jury. But the Court, in its general charge, told the jury that the answer in justification ought not to be used in aggravation, and that they must assess the damages in and of all the circumstances proved.

The instructions moved by the defendant were, for the reasons given by the Court, properly refused. When words are not actionable unless special damages are alleged, the proof of damages must be confined to those laid in the complaint; but where, as in this case the words are actionable, actual damages are not essential to the maintenance of the...