Nicholson v. Rust

• Decision Date: 30 September 1899
• Citation: 52 S.W. 933
• Parties: NICHOLSON v. RUST. [1]
• Court: Kentucky Court of Appeals

52 S.W. 933

NICHOLSON v. RUST. ^[1]

Court of Appeals of Kentucky.

September 30, 1899

Appeal from circuit court, Graves county.

"Not to be officially reported."

Action by Minnie Nicholson against W. W. Rust for slander. Judgment for defendant, and plaintiff appeals. Reversed.

D. G Park, Greer & Reed, J. C. Speight, and B. C. Seay, for appellant.

Robertson Robbins & Thomas, for appellee.

BURNAM J.

This is an action for slander, instituted by appellant, an unmarried twin daughter of Mrs. Nicholson, against appellee. She alleges that appellee, in the presence of W. R. Staten and others, with the intention of injuring her good name, falsely and maliciously spoke of her these words: "One of Mrs Nicholson's twins had twins, so I heard;" and further alleges that she is unmarried, and was the party referred to by appellee. Appellee admits the speaking of these words, but denies that he did so maliciously, of with the intention of charging appellant with having given birth to illegitimate children, or that he was so understood by any one who heard him; and says that he had informed by his wife who received the information from his daughter, that it was currently reported that appellant had given birth to twins, but that he did not believe it, and so informed Staten at the time he spoke to him about it; that he spoke of the matter to Staten because both he (Staten) and himself were Master Masons, and friends of appellant's father, and with the intention of discharging a fraternal and social duty towards appellant, and to acquire further information himself, so that he might be better able to communicate the true state of the report to appellant; and charges that the report had been largely circulated in the neighborhood for several months before he heard it. Appellant filed a general demurrer to this answer, which was overruled; and the pleadings being made up, and the case tried before a jury, resulted in a verdict for the defendant, which we are asked to reverse.

The most important error complained of, and one to which we will first address ourselves, is in the instructions given the jury, which are as follows: "No. 1. The court instructs the jury that if they believe from the evidence that the defendant maliciously spoke of and concerning plaintiff in the presence and hearing of Bob Staten these words, 'One of Mrs. Nicholson's twins had twins, so I heard,' and thereby intended to charge plaintiff with having committed the crime of fornication, and the said Staten so understood the said words, they will find for plaintiff such compensatory damages for injury to her character, including mental suffering, anguish, or exasperation, caused by the speaking of said words; and they may, in addition, allow plaintiff such damages by way of punishment as they may deem just and right, under the evidence, within a sound discretion, not exceeding in all the amount claimed in the petition. No. 2. The court instructs the jury that if they believe from the evidence that, before the speaking of the words charged in the petition and admitted in the answer, it had been rumored or reported in the neighborhood or vicinity of defendant, in words, that 'one of Mrs. Nicholson's twins had twins,' or words of substantially the same meaning, and that when defendant spoke said words in the presence and hearing of W. R. Staten he was merely repeating said rumor theretofore current in the neighborhood, and so informed Staten, and at the same time told him the name or names of the person or persons from whom he learned said report; and further believe from the evidence that defendant did not speak and repeat said report maliciously, or for the purpose of giving it further circulation, or injuring the character of plaintiff, and did not, at the time of speaking said words, intend to charge the plaintiff with having committed the offense of fornication, but in good faith, at the time he reported such reports, stated to Staten that he did not believe it was true, and said Staten did not at the time understand from defendant's language, taken altogether, that he intended to charge plaintiff with having committed the offense of fornication,--they will find for the defendant." In this state, and, so far as we are advised, throughout the United States, it is actionable per se to impute a want of chastity to a female without allegation or proof of special damage, and it is not necessary that the words should make the charge in express terms. They are actionable if they consist of a statement of matters which would naturally and presumably be understood by the hearers as a charge of the offense (see Newell, Defam. pp. 152-155); and malice is always implied from the speaking of such words, and calls for no...