Paysse v. Paysse

• Decision Date: 10 March 1915
• Docket Number: 12222.
• Citation: 146 P. 840,84 Wash. 351
• Parties: PAYSSE et ux. v. PAYSSE.
• Court: Washington Supreme Court

146 P. 840

84 Wash. 351

PAYSSE et ux. v. PAYSSE.

No. 12222.

Supreme Court of Washington

March 10, 1915

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Sibbie P. Paysse and wife against Mattie T. Paysse. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial.

Reed & Hardman and Hughes, McMicken, Dovell &amp Ramsay, all of Seattle, for appellant.

Tucker & Hyland, of Seattle, for respondents.

MOUNT J.

This is an action for slander. The cause was tried to the court and a jury. A verdict was returned in favor of the plaintiffs for $3,000. The defendant has appealed.

Several errors are assigned in the appellant's brief, but we think there is no merit in any of these assignments, except the one upon the instructions, and that the verdict is excessive. We shall therefore proceed to discuss these assignments.

The complaint in paragraph 2 alleged that at a certain time the defendant spoke these false and defamatory words, to wit:

'That the said Sibbie P. Paysse is a son of a bitch; that Sibbie P. Paysse is a bastard; that the father and mother of said Sibbie P. Paysse were never married, and I know it, and I can prove it; that the said Sibbie P. Paysse's wife is a whore; and that the said Sibbie P. Paysse is living with her knowing her to be such.'

Paragraph 3 alleges that the defendant spoke the following words of and concerning the plaintiffs:

'That Sylvan Paysse (the father of plaintiff Sibbie P Paysse) and Mary Paysse (the mother of plaintiff Sibbie P Paysse) were not legally married, and that the said plaintiff Sibbie P. Paysse was a bastard.'

Paragraph 4 alleges that the defendant spoke the following words:

'That the said Sibbie P. Paysse had married a whore; that the father and mother of said Sibbie P. Paysse were never married; and that said Sibbie P. Paysse was a bastard.'

Paragraph 5 alleges that the defendant spoke the following words, to wit:

'That the said Sibbie P. Paysse had married a whore; that Belle Paysse, the wife of said Sibbie P. Paysse, was a prostitute; that the said Sibbie P. Paysse was a son of a bitch; and that the said Sibbie P. Paysse was a bastard.'

Paragraph 6:

'That the said plaintiff Sibbie P. Paysse was a bastard, and that the wife of said Sibbie P. Paysse was a prostitute.'

Paragraph 7:

'That she would not let plaintiffs see their father (meaning S. Paysse, Sr., the father of plaintiff Sibbie P. Paysse) for the reason that the said Sibbie P. Paysse was a bastard; that his wife was a disgraceful character, to wit, a prostitute.'

Paragraph 8:

'That he (the said plaintiff) was not entitled to any of the property of his father (thereby meaning, and leading the said Baker to understand him to mean, S. Paysse, Sr.) for the reason that said S. Paysse, Sr., and his former wife, the mother of plaintiff Sibbie P. Paysse, were never married, and that the said Sibbie P. Paysse was a bastard.'

Paragraph 9:

'That the said Sibbie P. Paysse was a bastard, and that his father and mother had never been married.'

Paragraph 10:

'That the said Sibbie P. Paysse was a bastard; that the father and mother of the said Sibbie P. Paysse had never been married; that the wife of the said Sibbie P. Paysse was a common woman, thereby meaning a woman of low virtue and morals; that the said Sibbie P. Paysse had his said wife in the family way before marriage and was compelled to marry her; that the said wife of said Sibbie P. Paysse was no better than a common whore; and that the wife of the said Sibbie P. Paysse came from a low and immoral house--thereby leading the said persons to whom the said defamatory words were spoken to believe and understand that the wife of the said Sibbie P. Paysse had been an inmate of a house of prostitution.'

For answer the defendant denied all the allegations of the complaint.

Upon the trial the court instructed the jury, among other things, as follows:

'The slanderous words mentioned in any one of the following paragraphs of the complaint (that is, paragraphs 2, 3, 4, 5, 6, 7, 8, and 10) are, in the language of the law, libelous per se (that is, they are libelous and actionable in themselves), and the law implies that they were used, when spoken, if you find they were spoken as alleged in the complaint, with malicious intent to defame the character of the person or persons, of and concerning whom they were spoken, and express malice need not be proven. * * * The slanderous words mentioned in paragraph 9 in said complaint are not libelous per se and are not actionable in themselves, and before you can find for the plaintiffs, under the allegations of that paragraph 9 of the complaint, you must find that plaintiffs have proved, by a fair preponderance of the evidence, that defendant spoke said words in said paragraph 9, and further that plaintiffs have been specially damaged thereby.'

It is at once apparent that these instructions are contradictory because the words alleged to have been spoken in paragraph 9, which the court tells the...