Hess v. Sparks

• Decision Date: 11 October 1890
• Citation: 44 Kan. 465,24 P. 979
• Parties: FRANK HESS v. NORA SPARKS
• Court: Kansas Supreme Court

24 P. 979

44 Kan. 465

FRANK HESS v. NORA SPARKS

Supreme Court of Kansas

October 11, 1890

Error from Cowley District Court.

ACTION for slander. Judgment for the plaintiff, Nora Sparks, at the December term, 1887, for $ 1,300. The defendant, Frank Hess brings the case here. The facts appear in the opinion.

Judgment affirmed.

Peckham & Henderson, and Pyburn & Love, for plaintiff in error.

Hackney & Asp, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This was an action for slander, by the defendant in error against the plaintiff in error. Two causes of action were set out in the petition:

"First: That the defendant on the 1st day of February, 1887, in the presence and hearing of divers persons, did falsely and maliciously speak and publish of and concerning the plaintiff the following false, malicious, and defamatory words, that is to say, 'What are you doing with that nine-dollar blackmailer here?' meaning thereby that the said plaintiff had committed the offense of extortion of money from a person or persons, by threats of accusation or exposure, or opposition in the public prints, and that she was a common blackmailer and extortioner.

"Second: That on said 1st day of February, 1887, in the presence and hearing of divers persons, said defendant did falsely and maliciously speak and publish of and concerning the said plaintiff the following false, malicious and defamatory words, to wit: 'She [meaning the plaintiff] tried to black-mail some one over at Dr. Sparks's;' meaning thereby that said plaintiff had tried to levy blackmail, or to extort money from some person or persons at Dr Sparks's, in said Arkansas City, by threats of accusation or exposure, or of opposition in the public prints, for the purpose of obtaining money thereby."

To this petition the defendant below interposed a general denial. A trial was had by the court and jury, and resulted in a verdict and judgment for the plaintiff below for $ 1,300. Plaintiff in error brings the case here for review, and his first contention is that the petition did not state facts sufficient to constitute a cause of action, or that the matters charged in the petition were not actionable per se.

I. The evidence upon the trial showed that the plaintiff below was a young woman, engaged at the time the alleged slanderous words were charged to have been spoken, in the Arkansas City cracker factory, making boxes and packing crackers, on a salary of nine dollars a week, and were addressed to the president of the cracker company. Did these words, spoken under the circumstances, charge the plaintiff below with the commission of such an offense as would occasion pecuniary damages to her?

"When language is used concerning a person or his affairs, which from its nature necessarily must, or presumably will, as its natural and proximate consequences occasion him pecuniary loss, its publication prima facie constitutes a cause of action, and prima facie constitutes a wrong without any allegation or evidence of damage, other than that which is implied, or presumed, from the fact of publication; and this is all that is meant by the term 'actionable per se,'" etc. (Newell, Defam. 181.)

Applying this rule to the case at bar, what is meant or understood by the word "blackmailer," or to charge one with being a blackmailer? -- as that is the substance of the charge in this case.

The word blackmail has a well-defined meaning: The extortion of money from a person by threats of accusation, or exposure, or opposition in the public prints. Hush-money, bribe to keep silence; the extortion of hush-money, obtaining of value from a person as a condition of refraining from making an accusation against him, or disclosing some secret calculated to operate to his prejudice. These definitions, given by the best lexicographers, convey to the mind what is intended to be understood by the use of the word. In speaking of the word "blackmail" and its understood meaning, Judge Monell says:

"In common parlance, and in general acceptation, it is equivalent to, and synonymous with, extortion -- the exaction of money, either for the performance of a duty, the prevention of an injury, or the exercise of an influence. Not infrequently it is extorted by threats, or by operating upon the fears or the credulity, or by promises to conceal, or offers to expose, the weaknesses, the follies or the crimes of the victim. There is moral compulsion which neither necessity, nor fear, nor credulity, can resist. It cannot be doubted, I think, that the term 'blackmailing' is invariably regarded as an unlawful act; and though, from its indefiniteness and comprehensiveness, he offense is not classified as a distinct crime, nevertheless it is believed to be criminal, and to charge a man with 'blackmailing' is equivalent to charging him with a crime." (Edsall v. Brooks, 26 How. Pr. 426.)

The doctrine of construction has been well stated by Mr. Starkie, in his Treatise on Slander, page 44:

"Both judges and jurors shall understand words in that sense which the author intended to convey to the minds of the hearers, as evinced by the whole circumstances of the case. It is the province of the jury, where doubts arise, to decide whether the words were used maliciously and with a view to defame; such being matter of fact, to be collected from all concomitant circumstances; and for the court to determine...