Payne v. Tancil

• Citation: 35 S.E. 725,98 Va. 262
• Parties: PAYNE v. TANCIL.
• Decision Date: 29 March 1900
• Court: Supreme Court of Virginia

35 S.E. 725

98 Va. 262

PAYNE

v.TANCIL.

Supreme Court of Appeals of Virginia.

March 29, 1900.

DEFAMATION—WORDS ACTIONABLE PER SE— INNUENDO — ENLARGING MEANING — SURPLUSAGE — STATUTORY ACTION — COMMON-LAW DEFAMATION—DEMURRER.

1. Saying of a plaintiff that he is "keeping" a certain woman imports a relation of criminal intercourse between them, and, since such language is actionable in itself, a colloquium in the declaration is not necessary.

2. The fact that the innuendo makes the words spoken impute the crime of adultery, when the declaration contains no averment that either party defamed was married, and the words themselves merely import criminal intercourse, is not ground for demurrer, fornication being made a crime by Code, § 3786.

3. A count, in a declaration for slander, declaring on certain words as constituting a cause of action under Code, § 2897, providing that words which "are from their usual construction and common acceptation construed as insults and tend to a breach of the peace" shall be actionable, is not demurrable as blending both common-law and statutory causes of action, though such words are also defamatory at common law.

Error to law and equity court of city of Richmond.

Action by one Tancil against one Payne. From a judgment for plaintiff, defendant brings error. Affirmed.

Geo. D. Wise and A. B. Guigon, for plaintiff in error.

Smith, Moncure & Gordon and Meredith & Cocke, for defendant in error.

BUCHANAN, J. This is an action for defamation. The declaration contains two counts, the first of which is a common-law count, and sets out the words complained of as follows: "Mrs. Bowler has two men between her and Mr. Bowler (meaning her husband); Dr. Tancil (meaning the plaintiff) being one of them (meaning that the plaintiff was committing adultery with Mrs. Bowler). That he (meaning the plaintiff) was keeping Mrs. Bowler (meaning that he was committing adultery with her). He (meaning the plaintiff) is using Mrs. Bowler (meaning that the plaintiff was committing adultery with Mrs. Bowler), and Bowler is running around like a little poodle dog, with not sense enough to see it Tancil (meaning the plaintiff) drives to Bowler's house, where Mrs. Bowler lived, as often as his horse goes to the stable."

The question is, are these words per se actionable? Words are actionable without a colloquium if they consist of a statement of facts or matters which clearly and unequivocally impute to the party charged a criminal offense involving moral turpitude, or which would subject him to an infamous punishment. Moseley v. Moss, 6 Grat 549; Cooley, Torts, 229, 230; Newell, Defam. p. 103, § 17.

In determining whether or not the language does impute a criminal offense, the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Roberts v. Camden, 9 East, 95; Walton v. Singleton, 7 Serg. & R. 449; Downing v. Wilson, 36 Ala. 717; Newell, Defam. p. 155; Townsh. Sland. & L. (4th Ed.) § 133.

It is difficult to conceive how the charge that the plaintiff "was keeping Mrs. Bowler, " when taken in connection with the other words spoken, or considered by themselves, could have been understood by hearers in any other sense than that the plaintiff was guilty of criminal intercourse with her. If they did not mean that, what did they mean? The words "keep" or "keeping" have no doubt several meanings, but their signification in a particular case depends upon the context, — the words with which or the circumstances under which they are used. But when it is said in reference to a woman that a man is "keeping her, " or of a man that he is "keeping a woman, " the ordinary and popular construction of that language is that the relation between the parties is one which involves criminal intercourse.

In the case of McBrayer v. Hill, 26 N. C. 136, the words spoken were that "he [the plaintiff] kept McBrayer's wife." The word "kept, " used in that connection, said Chief Justice Ruffin, had a common and well-established sense, and denoted habitual and criminal carnal connection. "This, " he said, "seems to us the natural import of the words in themselves, or as the people in the country would universally understand them."

In Downing v. Wilson, 36 Ala. 717, it was held that to say of a woman that a certain man "keeps her" involves a charge of illicit sexual intercourse, when the words are understood in their ordinary popular acceptation, and are per se actionable. See, also, Cars-lake v. Mapledoram, 2 Term R. 473.

There is no averment in the count that either the plaintiff or Mrs. Bowler was married, although it might be inferred that the latter was; yet the innuendo makes the words spoken impute the crime of adultery to the plaintiff. This, it is argued, renders the count demurrable, because the innuendo imputes a crime to the plaintiff, which is not justified by the averments of the count, nor by the words spoken. This view cannot be sustained. The office of the innuendo is to designate, not to enlarge, the meaning of the words. Moseley v. Moss, 6 Grat. 549, 550.

It was wholly immaterial, for the purpose of sustaining this action, whether the offense charged was adultery or fornication. Both are made crimes by section 3786 of the...