McQueen v. Fulgham

• Decision Date: 01 January 1864
• Citation: 27 Tex. 463
• Parties: SARAH MCQUEEN AND ANOTHER v. NARCISSA J. FULGHAM.
• Court: Texas Supreme Court

27 Tex. 463

SARAH MCQUEEN AND ANOTHER

v.NARCISSA J. FULGHAM.

Supreme Court of Texas.

1864.

The common law liability of a husband for the torts of his wife is not, it seems, abrogated in this state by our statutes regulating marital rights. An action, therefore, lies against both husband and wife for slanderous words uttered by the wife alone.

Quære. Whether, in such an action, the separate estate of the wife or the community property can be subjected to the judgment in exoneration of the husband's separate property?

The case of Linney v. Maton (13 Tex., 449) cited and approved, in so far as it is there held that words importing want of chastity to a female are not actionable without special damage.

But it seems that any damage, however slight, will suffice to sustain the action.

Where the special damage alleged to have resulted from words defamatory of female reputation was dejection of mind, and loss of health, and consequent inability of the plaintiff to attend to her ordinary business, it was held to be sufficient to sustain the action.

A court cannot hold, as matter of law upon exceptions to a petition, that slanderous words derogatory to the reputation of a female for chastity may not so prey upon her mind and impair her health as to occasion pecuniary loss for which an action will lie.

See this case for evidence held to be insufficient to sustain a verdict for damages in an action of slander, for the reason that the special damage (loss of appetite and pecuniary injury) was not shown to be consequential upon the defamatory words.

APPEAL from Tyler. Tried below before the Hon. J. M. Maxcy.

This was an action of slander brought by Narcissa J. Fulgham, a minor, who sued by her next friend, against Sarah McQueen and her husband, Milton McQueen, the damages being laid at ten thousand dollars.

The slanderous matter charged in the original petition was that the defendant, Sarah, uttered and published the words following, to wit: “Narcissa Jane Fulgham had a child whilst she was at Mrs. Kirkwood's pretending to weave a piece of cloth; she lay a-bed nearly all the time she was pretending to weave the cloth, and had her baby, a large baby, and Mrs. Kirkwood had her cloth woven for her;” which words were alleged to have been spoken in the presence and hearing of Mary Pullen and sundry other persons.

The defendant, Milton McQueen, demurred generally in a separate answer, because the matters and things set up in the petition were insufficient in law to entitle the plaintiff to have or maintain this action against this defendant. This demurrer was overruled by the court.

Both defendants demurred generally and also specially, assigning for cause that the plaintiff's petition contained no allegation of special damage.

The plaintiff thereupon amended her petition, and alleged “that by reason of and in consequence of the speaking, utterance, and publishing of said false and slanderous words that plaintiff is greatly injured in her fame, name, credit and reputation, and brought into public infamy, scandal and disgrace; and by means of the speaking, uttering and publishing of said base, scandalous and malicious words by the defendant, the plaintiff became dejected in mind and enfeebled in body, so as to be prevented from attending to her ordinary business,” to her damage, etc.

In a second count of the amended petition the plaintiff charged that the defendant, Sarah, wife of the defendant, Milton McQueen, uttered and published of and concerning the plaintiff, who was a single woman, “certain other false, scandalous and malicious words, in substance as follows: “I' (meaning said Sarah McQueen) ‘had understood that Narcissa Jane Fulgham (meaning your petitioner) had a miscarriage,’ thereby meaning that your petitioner had been delivered of a bastard child.” This count also alleged the special damage in the same terms as the preceding allegation, to consist in dejection of mind and enfeeblement of body, so as to prevent the plaintiff from attending to her ordinary business, and laid as aggravation the injury to her fame, name and repute.

In a third count, the plaintiff charged the slanderous matter as specified in the second count, with the addition of the following words: “Mrs. Dominey told me (meaning the said Sarah McQueen) that Narcissa Jane Fulgham (meaning your petitioner) had had a miscarriage, and it was a pretty large child.” As special damage, this count alleged that “in consequence of the speaking, utterance and publishing of which said false and slanderous words, your petitioner became dejected and grieved in mind, enfeebled in body, her health impaired so as to be thereby prevented from attending to her ordinary business; and otherwise injured in her name, fame and credit, and brought into public scandal, infamy and disgrace; and for the clearing of the said scandal has been subjected to great trouble and expense in procuring the advice of counsel and the testimony of witnesses, greatly to her damage, to wit, in another sum of ten thousand dollars.” Plaintiff made a direct averment that the defendants were husband and wife, and prayed judgment against them both.

The defendants amended and alleged that the defendant Sarah owned and possessed in her own right and separate from her husband, real estate and slaves, together with a large amount of personal property, the same being ample to respond in damages over and above the amount claimed by the plaintiff. They further represented that, if the said Sarah ever used the words alleged in the petition, that she at the same time gave and mentioned her author, to wit, one Mrs. Dominey; and that the same were spoken, if at all, inquiringly as to the truth of said report, and out of her great concern for the character and standing of the plaintiff, and without any malice against the plaintiff.

All the demurrers to plaintiff's petition were overruled, except the special demurrer to “the last count so far as relates to special damages,” which was sustained.

A trial was had at the spring term, 1859, when the plaintiff introduced Mary Pullen, who proved in substance the uttering of the defamatory words imputed to the defendant Sarah, but said that they appeared to be made in the way of inquiry, and that the defendant gave the name of Mrs. Dominey as her author. This latter lady was introduced and testified that she had never told the defendant Sarah anything of the kind, nor had ever had any conversation with her regarding the plaintiff of the character complained of. It was shown that the plaintiff had always maintained an unimpeached character for modesty and morality, and that it was not injured by the defamatory reports on which this suit was founded.

The witness, whose testimony is alluded to in the opinion, testified that he had known the plaintiff for nearly twelve years, and had seen her as often as once a month since that period; that he saw her soon after the report of her having a bastard child or a miscarriage got into circulation, which was some time in 1858; that he did not hear her speak on the subject of the report, but observed a great change in her; that before the period in question she had been cheerful enough, though quiet and modest, but, after the report, seemed greatly changed, being depressed and very unhappy, silent and much dejected; that she would sit at dinner and refuse to eat as formerly; that previously she had been accustomed to assist in doing the household work of her father's family, but she has become, as witness considered, unable from her state of mind to attend to her duties and perform her labor in the family as formerly. That she...