Jackson v. Williams

• Decision Date: 06 December 1909
• Citation: 123 S.W. 751,92 Ark. 486
• Parties: JACKSON v. WILLIAMS
• Court: Arkansas Supreme Court

123 S.W. 751

92 Ark. 486

JACKSON v. WILLIAMS

Supreme Court of Arkansas

December 6, 1909

Appeal from Craighead Circuit Court, Lake City District; Frank Smith, Judge; reversed.

Judgment reversed and cause remanded.

Carroll & Turner, for appellant.

Whether words are actionable per se is a question of law for the court. 121 N.Y. 199; 23 Ind. 265; 98 Tenn. 139; 129 Ala. 349; 55 Ark. 498; 55 A. 287; 86 Ark. 56; 16 Ia. 252.

Huddleston & Taylor, for appellee.

Whatever will preclude plaintiff's right of recovery may be given in evidence. 2 Ark. 415; 3 Ark. 552. It is too late to except to the qualifications of a juror after verdict. 23 Ark. 51; 35 Ark. 109; 70 Ark. 244; 15 Ark. 403. The husband is not liable for the torts of his wife, committed during coverture out of his presence, and in which he in no manner participates. 14 L. R. A. (N. S.) 1009; Id. 1003; 30 L. R. A. 521.

OPINION

HART, J.

This is an action of slander brought by the plaintiff, Dora Jackson, against the defendants, J. M. Williams and Nancy Williams. The defendants are husband and wife. The complaint sets out the exact language which constituted the slander and the allegation is sustained by the evidence. It is not necessary to repeat the language here; but it is sufficient to say that the defendant Nancy Williams in divers conversations with her neighbors, in plain terms, charged that the plaintiff had been guilty of fornication with her husband and co-defendant, and that such charge was false. Her husband was not present at any of the conversations, and had no knowledge of her intended acts. In a trial before a jury, a verdict was returned in favor of the defendants. From the judgment rendered upon the verdict the plaintiff has appealed.

It is first insisted by her counsel that the court erred in giving instructions Nos. 2 and 3. They are as follows:

"2. You are instructed that if you find from the evidence that plaintiff (defendant) had what reasonably appeared to her to be grounds for making the charges, then if any damages at all are recoverable, it would be only compensatory damages."

"3. You are instructed that, although you may find from the evidence that Mrs. Williams called the plaintiff 'a whore' or any other name importing unchastity, yet if you further find that such name or names was used by Mrs. Williams and was understood by the persons to whom they were addressed as mere epithets, and not intended to charge the want of chastity which would be implied by their ordinary acceptation and definition, then and in that event the plaintiff could recover only such damages, if any, as resulted from the use of said language. But if Mrs. Williams did in fact use words which in their ordinary import charge unchastity, the burden would be upon her to show that they were not in fact so uttered and understood."

In this they are correct, for the statute makes the words spoken actionable per se. The instructions were faulty because they left to the jury to determine whether or not the language was actionable per se.

The words used were not capable of two constructions. Their plain and natural import was to charge that the plaintiff had been guilty of fornication with the defendant J. M. Williams. The court should have told the jury that the words were actionable per se, and should not have left them to believe that it was their province to determine that fact. Section 1854 of Kirby's Digest is as follows:

"If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken, shall be deemed slander, and shall be actionable and indictable as such."

The words spoken being actionable per se, the court should have so instructed the jury as a matter of law. Greer v. White, 90 Ark. 117, 118 S.W. 258; Murray v. Galbraith, 86 Ark. 50, 109 S.W. 1011; Stallings v. Whittaker, 55 Ark. 494, 18 S.W. 829; Roe v. Chitwood, 36 Ark. 210.

Instruction No. 3 is also erroneous because it was calculated to impress upon the minds of the jury that plaintiff was not entitled to recover at all, if they should find that the defamatory words were not intended to injure her character, and that they were not understood by the persons to whom they were addressed as having been spoken with the intent to injure plaintiff.

In the case of Greer v. White, supra, the court held (quoting syllabus): "In actions for slander it is immaterial what meaning the defendant intended to convey by the language used if the words complained of are in fact slanderous." The authorities on the question are there reviewed, and it is useless to repeat them here. As stated in 25 Cyc. 335, "the rule now is that the words are to be taken in their plain and natural meaning, and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used and the ideas they are adapted to convey to those who heard or read them."

Counsel for appellant also contends that the court erred in giving the following instruction:

"6. You are instructed that if you find from the evidence that at the several times Mrs. Williams uttered the charges set out in the complaint she was mentally irresponsible by reason of ill-health or other cause then plaintiff can not recover. By 'mentally irresponsible' is meant such condition of the mind as that she did not know what she was saying or understand the purpose and effect of her words. But the burden of proving such condition is upon the defendant."

The instructions should not have been given, for the reason that there was not sufficient evidence upon which to base it.

J. M. Williams testified as follows:

"Q. Tell the jury what was the condition of her health and the result of it upon her health at the time this trouble came up? A. My wife is right at the change of life, and from my study and observation I have learned that it is a very critical period of a woman's life. They are more subject to hysteria and other mental troubles at that time, and I think she is. S

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