Kelly v. Flaherty

• Decision Date: 25 May 1888
• Citation: 16 R.I. 234,14 A. 876
• Parties: KELLY v. FLAHERTY et ux.
• Court: Rhode Island Supreme Court

14 A. 876

16 R.I. 234

KELLY

v. FLAHERTY et ux.

Supreme Court of Rhode Island.

May 25, 1888.

Exceptions from court of common pleas, Providence county.

Action for slander. After verdict for the plaintiff in the court of common pleas, the defendant moved to arrest judgment because the declaration did not set out any cause of action. The motion was dismissed, and the defendant excepted.

Charles H. Page and Franklin P. Owen, for plaintiffs. Ambrose E. West, for defendant.

DURFEE, C. J. The defamatory words alleged to have been spoken of the plaintiff are the following, to-wit: "You are a bitch and a whore; you visit the Halfway House, and got your dress there." The motion in arrest raises the question whether the words are actionable per se; no special damages being alleged. The innuendo added in the declaration is: "Meaning and intending to charge said plaintiff with fornication and adultery, and with obtaining a dress by illicit intercourse at the Halfway House." We think, however, that, as there is no inducement or prefatory averments in the declaration, the words cannot be deemed to impute to the plaintiff anything more than fornication. The question, then, is whether words imputing to an unmarried woman the offense of fornication are actionable per se. At common law, fornication was not a criminal offense, and words charging a woman with it were not actionable per se. In the United States, generally, if not everywhere, it is a misdemeanor by statute; but, upon the question whether words charging it are actionable per se, there is a diversity of decision. In several states such words are made so by statute. Townsh. Sland. & Lib. § 153. In the leading case of Brooker v. Coffin, 5 Johns. 188, it was held that words imputing criminality are actionable per se when they impute an indictable offense involving moral turpitude, or an offense which exposes the offender to an infamous punishment. This rule has been widely recognized, and is probably the rule which is the more generally accepted. Cooley, Torts 196, 197. Under it the words here complained of are not actionable per se, since, in this state, the punishment for fornication is simply a fine of not over $10, which is recoverable by complaint and warrant, not by indictment. In Massachusetts, in Miller v. Parish, 8 Pick. 384, the rule was laid down more broadly, namely: "When an offense is charged which, if proved, may subject the party to a punishment not ignominious, but which brings disgrace upon the party falsely accused, such an accusation is actionable;" and in that case it was held to be actionable per se to charge an unmarried woman with fornication. See, also...