Marion v. Davis

• Decision Date: 03 November 1927
• Docket Number: 7 Div. 747
• Citation: Marion v. Davis, 217 Ala. 16, 114 So. 357 (Ala. 1927)
• Parties: MARION v. DAVIS.
• Court: Alabama Supreme Court

114 So. 357

217 Ala. 16

MARION v. DAVIS.

7 Div. 747

Supreme Court of Alabama

November 3, 1927

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for slander by D.F. Marion against Minnie Davis.From a judgment for defendant, plaintiff appeals.Affirmed.

Motley & Motley, of Gadsden, for appellant.

Alto V Lee, for Gadsden, for appellee.

BROWN J.

Words falsely imputing to a woman a want of chastity, whether oral or written, are by statute made prima facie malicious, and are actionable per se.Code of 1923, § 7359.But we have no statute extending this degree of protection to persons of the male sex, and, in determining whether or not plaintiff has stated a cause of action in any one or more of the counts of his complaint, we must look to the rules of the common law applicable in such cases.

The right to the enjoyment of a private reputation, unassailed by malicious slander, is of ancient origin, and is necessary to human society.A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.Constitution of 1901, § 13;Newell's Slander & Libel(3d Ed.) §§ 1, 26;36 C.J. 1148, § 11.The foundation of an action for libel or slander is a malicious injury to reputation, and any false and malicious imputation of crime or moral delinquency by one published of and concerning another, which subjects the person to disgrace, ridicule, odium, or contempt in the estimation of his friends and acquaintances, or the public, with resulting damage to his reputation, is actionable either per se or per quod.Ex parte West(Re Peinhardt v. West)(Ala.Sup.)115 So. 88;36 Cyc. 1149 § 13;Rice v. Simmons, 2 Har. (Del.) 417, 31 Am.Dec. 766;17 R.C.L. 264, § 4.

There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation, too well grounded in the law to be now questioned.This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.

In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se.While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude.Ex parte West(Re Peinhardt v. West)supra;Rice v. Simmons, supra;36 C.J. 1152, § 19;17 R.C.L. pp. 263, 264, §§ 3 and 4.

This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemeanor.In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action.17 R.C.L. p. 264, § 4.

The effect and tendency of the language used, not its form, is the criterion determining its actionable quality.It is not necessary to render words defamatory and actionable that they make defamatory charges in direct terms; they are equally actionable if the charge is made indirectly or by necessary inference, and it matters not how artful or disguised their meaning is concealed, if they are in fact defamatory.In determining their actionable character, they are to be taken in their natural meaning, and according to the sense in which they appear to have been used, and the idea they are adapted to convey to those who heard them.A forced construction is not to be put upon them in order to relieve the defendant from liability.Downing v. Wilson,36 Ala. 717;Berry v. City of New York Ins. Co.,210 Ala. 369, 98 So. 290;Waters v. Jones, 3 Port. 442, 29 Am.Dec. 261;Phillips v. Bradshaw,167 Ala. 199, 52 So. 662;Johnson v. Turner,159 Ala. 356, 47 So. 570;Labor Review Pub. Co. v. Galliher,153 Ala. 364, 45 So. 188, 15 Ann.Cas. 674;36 C.J. 1155, § 21;17 R.C.L. 312, 313, §§ 53, 54.

On demurrer to the complaint, alleged defamatory matter must be construed in connection with other parts of the conversation or publication, and the circumstances of its publication, if pleaded, and, if it is not actionable per se, and is of doubtful meaning, or subject to two interpretations, one harmless and the other injurious, the pleader may by proper innuendo interpret it by pointing out its injurious tendencies, but may not enlarge its meaning, or give it a construction beyond its natural import, and, if he does, this will...