Hollman v. Brady, 14809.
Decision Date | 22 May 1956 |
Docket Number | No. 14809.,14809. |
Citation | 233 F.2d 877 |
Parties | Myrtle HOLLMAN, Appellant, v. Catherine BRADY, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Harold J. Butcher, Anchorage, Alaska, for appellant.
McCutcheon & Nesbett, Buell A. Nesbett, Anchorage, Alaska, for appellee.
Before DENMAN, Chief Judge, and ORR and LEMMON, Circuit Judges.
This is an appeal from a judgment of the District Court for the Territory of Alaska awarding appellee $1,500 for slander. Appellant contends that her statement was not slanderous per se, that the District Court erred in not instructing the jury that the slanderous statement must have proximately caused appellant's damage, and that irregularities in the selection of a jury constituted reversible error.
The uncontradicted testimony is that appellant stated to appellee's husband in the presence of others, and as a result appellee's husband would doubt her when he had been drinking and subject her to verbal abuse about the matter. This caused appellee to lose weight and suffer emotional distress.
Appellant argues that her statement about appellee was not slanderous per se under Alaska law, and consequently appellee had the burden of proving special damages resulting from it.1 At common law in the Nineteenth Century a statement imputing unchastity to a woman, or even professional unchastity, was not considered slanderous per se.2 This was a consequence of an earlier division of powers between the civil and ecclesiastical courts rather than any reasonable conclusion as to the nature of such a statement and its effect on the reputation of a woman. The English judges denounced the rule, but it was not changed until the Slander of Women Act in 1891.3
A number of American decisions have followed the English common law view that to call a woman a whore was not slanderous per se.4 Today the majority of American jurisdictions have wiped out this rule — called "a reproach to the law" by Dean Prosser — by statute5 since this is a type of statement almost certain to cause serious injury to a woman's reputation.
Alaska has no such statute, and in 1952 when the language was used to call a woman a whore was not to charge her with a crime of moral turpitude. It was not until 1955 that prostitution was made illegal in Alaska.6 Appellee defends her judgment by pointing out that Section 2-1-2, A.C.L.A. 1949, provides that "So much of the common law as is applicable * * * is * * * the law in the Territory of Alaska." Emphasis added. She contends that a rule condemned by courts and writers, based on a historical division of function between civil and ecclesiastical courts, and changed in England and most states of the United States before Alaska was settled by large numbers of white men is not applicable.
This was the approach taken by the Colorado Supreme Court in Biggerstaff v. Zimmerman, 1941, 108 Colo. 194, 114 P.2d 1098 in rejecting the common law rule without the benefit of a statute. That court said at 114 P.2d 1099:
The District Court of Alaska did not err in following the reasoning of the Colorado Supreme Court. The common law rule was clearly outmoded.7 Appellant could hardly be said to have relied on the distinction between slander per se and slander per quod hinging on the necessity to prove special damages at the time she uttered the statement "Your wife is an ex-whore from Butte, Montana." It should come as no surprise that the statement is slanderous and very likely to cause serious damage.
Since appellant's statement was slanderous per se it is unnecessary to consider her contention that the Court erred in not instructing the jury that the remark must have proximately caused the damages proved by appellee.
Appellant finally contends that...
To continue reading
Request your trial-
Grimes v. Carter
...publication, orally uttered, and * * * which: '4. Imputes to (the plaintiff) * * * a want of chastity; * * *' (See Hollman v. Brady, 233 F.2d 877, 16 Alaska 308; Mercado v. Hoefler, 190 Cal.App.2d 12, 18, 11 Cal.Rptr. The defendant filed a demurrer to the original complaint and a motion to ......
-
Doran v. Priddy, Civ. A. No. 79-1443.
...Cases in which "whore" is linked just with prostitution include Barnett v. Phelps, 97 Or. 242, 191 P. 502 (1920); and Hollman v. Brady, 233 F.2d 877 (9th Cir. 1956). Both sides have pointed to dictionaries, with plaintiff showing that the first meaning given is "prostitute," and defendant p......