Hudson v. Garner

• Decision Date: 31 January 1856
• Citation: 22 Mo. 423
• Parties: HUDSON, Defendant in Error, v. GARNER AND WIFE, Plaintiffs in Error.
• Court: Missouri Supreme Court

22 Mo. 423

HUDSON, Defendant in Error,

v.GARNER AND WIFE, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1856.

1. Words charging a woman with being a “whore” are actionable per se.

2. An inuendo in the petition, that the defendant intended by such words to charge the plaintiff with adultery, being unnecessary, may be rejected.

3. Where slanderous words are spoken falsely of another, it is unnecessary to aver or prove express malice.

Error to Benton Circuit Court.

The facts sufficiently appear in the opinion.

F. P. Wright, for plaintiff in error, among other points, made the following:

1. The petition does not state facts sufficient to constitute a cause of action. The complaint is that Mrs. Garner used words by which she meant that plaintiff had been guilty of adultery, and it does not appear that the plaintiff is or ever was a married woman. (3 Mo. 160.) 2. Admitting that the words are actionable in themselves, if spoken falsely and maliciously, whether they were intended to impute either adultery or fornication, yet as plaintiff, by inuendo, has declared that they were intended to impute adultery, she was bound to prove that they were uttered in the sense thus ascribed to them. (Smith v. Cary, 3 Camp. 460; 1 Chitty's Plead. 437; Mix v. Woodward, 12 Conn. 262; Williams v. Scott, 1 Cromp. & Mees. 657; 20 Mo. 542.) 3. The petition is also bad in failing to aver that the words were spoken and published falsely and maliciously. (1 Chitt's Pl. 436; R. C. 1845, p. 1011.)

Gardenhire and Morrow, for defendant in error.

1. The word “whore” imports ex vi termini a fornicatrix and an adulteress. (Johnson's Dic.; R. C. 1845, p. 1011.) 2. Words spoken slanderous in their character are prima facie maliciously spoken, unless proven to be true. 3. It was not necessary to prove the inuendo. (Starkie on Slander, 213, 216, 217; 4 Wend. 324; 5 Johns. 225; 19 Mo. 513.)RYLAND, Judge, delivered the opinion of the court.

This is an action for slander. The petition is according to the form under the new code of practice, and it charges that Polly Garner, the wife of the other defendant, Luke Garner, in the presence and hearing of Calvin Beck and divers other persons, on the first day of January, in the year 1854, at the county of Benton, spoke and published the following false and slanderous words, of and concerning the plaintiff; that is to say: “Go along home (speaking to plaintiff's son John) and see your whorish mother, and tell your mother to send you down to the south, to see your father Tom (intending then and thereby to charge the plaintiff with having been guilty of the crime of adultery with negro Tom). Your mother (speaking to the plaintiff's son John) is a whore, and I can prove it. Damn your black soul (speaking to plaintiff's son John); go along home to your whorish mother; you'll get to the south directly to your father; any how, Tom is your father. Your mother (speaking to plaintiff's son John) is nothing but a damned whore--G-d damn her whorish soul; she was nothing but a whore any how;” meaning then and there and thereby, that the plaintiff was a woman of lewd character, and that plaintiff had been guilty of the crime of adultery with said negro Tom: and concludes by laying her damages at the sum of ten thousand dollars.

The defendants appear and answer; deny the speaking of the words, and deny all the allegations of the plaintiff's petition. Upon the trial, the jury found the defendants guilty, and assessed the plaintiff's damages at the sum of three thousand dollars.

The defendants file their motion for a new trial, which was overruled; also their motion in arrest of judgment, which was likewise overruled. They excepted, and bring the case here by writ of error.

In looking into the bill of exceptions, the evidence preserved plainly establishes the speaking of the words; nor is there any error on the part of the inferior court in relation to the instructions given and refused.

The principal matters relied on by the plaintiffs in error for a reversal of the judgment, arise upon the plaintiff's petition. It is alleged that the suit is brought by Ursula Ann Hudson, a single woman, and the petition, by its inuendoes, charges the defendant, 1st, with intending to impute, by the speaking of the words, the crime of adultery to the plaintiff; that it nowhere appears that the plaintiff had ever been married, or had ever been in a situation to commit the crime of adultery; that, admitting the words are actionable in themselves, if spoken falsely and maliciously, whether they intended to impute either adultery or fornication, yet as the plaintiff, by inuendoes, has declared that Mrs. Garner intended, by speaking the words, to impute adultery, the plaintiff was bound to prove they were uttered in the sense thus ascribed to them. To support this view, various authors have been cited, which I will notice in proper time.

By our statute, it is actionable to publish, maliciously and falsely, in any manner whatsoever, that any person has been guilty of fornication and adultery. In this petition, the words are actionable of themselves; and there is no necessity for any colloquium, or any inuendo, to explain the meaning of such words.

In this petition, the plaintiff has not set forth what the pleaders call a colloquium. But, following the form which our new code of practice says may be used, she charges that Polly Garner, one of the defendants, “spoke and published the following false and slanderous words concerning the plaintiff.” Then, after setting forth the words actionable in themselves, the plaintiff, by inuendo, charges that the defendant meant to impute the crime of adultery to the plaintiff. Can this inuendo be rejected and stricken out as surplusage? If it can, then the petition of the plaintiff may be considered sufficient to support the judgment, however carelessly and unprofessionally drawn.

An inuendo is only explanatory of some matter already expressed; it may apply to what is already expressed, but can not add to or enlarge or change the sense of the previous words. (1 Chitty Plead. 437.) An inuendo, says Chitty, (1 vol. Plead. 438,) though it may, in the particular case, be unnecessary, “will sometimes limit and confine the plaintiff in his proof, to show that the slander had the meaning thereby imputed to it: thus, where the plaintiff alleged that he was treasurer and collector of certain tolls, and that the defendant spoke of him, as such treasurer and collector, certain words, ‘ thereby meaning that the plaintiff, as such treasurer and collector, had been guilty,’ &c., it was held that the plaintiff was bound by the inuendo to prove that he was treasurer and collector. If the words imported either fraud or felony, but by the inuendo they be confined to the latter, the plaintiff must prove they were spoken in the latter sense. The inuendo affixing a particular signification to the slander, should therefore never be unnecessarily adopted, as is too frequently the case. It is not unusual even, after setting out words which clearly of themselves import a charge of felony, to add, ‘thereby then meaning that the plaintiff had feloniously stolen,’ &c. this is unnecessary, and, as it is a statement of a mere legal conclusion, is improper, though it may be surplusage.” On the other hand, where new matter, introduced by an inuendo, without any antecedent colloquium or statement to which it can refer to support it, is altogether unnecessary to sustain the action, then the inuendo may be rejected as surplusage.

The case of Smith v. Carey, reported in 3 Campb. 460, is a very meagre one. The action is for slander of plaintiff in his trade. The words were, that “he lived by swindling and robbing the public.” These were laid differently in different counts of the declaration; but in each count, there was an inuendo that the defendant thereby meant “that the plaintiff had been and was guilty of felony and robbery.” The words were proved as laid, but appeared to allude to a transaction from which it might be inferred that the defendant only meant to charge the plaintiff with a fraud. Lord Ellenborough said: “The words were, in themselves, actionable; and if there had been no such inuendo as to their meaning, the plaintiff would certainly have been entitled to a verdict; but the plaintiff was bound to show they were spoken in the sense he had ascribed to them; and if the jury should be satisfied they were spoken with intent to impute not felony, but merely fraud, there must be a verdict for the defendant.” It is not in our power to see how the charge was made here: no doubt, though, the action was for words spoken against the plaintiff in connection with his trade, and that there was a colloquium charging the words as having been spoken of the plaintiff in his character and capacity of tradesman. The colloquium was necessary here, as the action was for slander of the plaintiff in his trade: then charging the words as having been spoken of the plaintiff and of his trade, and his conduct as tradesman, and by inuendo asserting the meaning of the words thus spoken to impute felony and robbery in the plaintiff in his trade, the inuendo made an important part of the charge; it gave the words their particular meaning. But such is not the case at bar, as I will hereafter show. The case of Smith v. Carey, therefore, is too meagre a report to be entitled to much weight.

The case of Williams v. Hott, (1 Cromp. & Mees. 675,) is reported at large, and, with the law laid down there, we have no hesitation in concurring. This was an action of slander for accusing the plaintiff of felonious embezzlement. The declaration contains five counts; at the commencement of the first there is a prefatory averment, that, before and at...