Ross v. Fitch

• Decision Date: 05 December 1882
• Docket Number: Case No. 1153.
• Citation: 58 Tex. 148
• Parties: A. ROSS v. R. C. FITCH AND WIFE.
• Court: Texas Supreme Court

58 Tex. 148

A. ROSS

v.R. C. FITCH AND WIFE.

Case No. 1153.

Supreme Court of Texas.

Dec. 5, 1882.

ERROR from Bastrop. Tried below before the Hon. J. P. Richardson.

Fitch and wife brought this suit against Ross July 14, 1874, to recover damages for slanderous words uttered and published by him of and concerning Mrs. Fitch. The words so charged to have been uttered and published imputed to Mrs. Fitch a want of chastity. The special damages alleged as resulting therefrom were, that Fitch and wife were poor, and dependent for a living upon their daily labor, and that by reason of the slander they had been refused employment, and polite and civil treatment; that they were keeping a boarding-house, and many of their boarders left them on account of the slander; that Mrs. Fitch was about taking up a school, and persons refused to send to her school on account of the slander, and that she was thereby forced to abandon the idea of teaching the school; that by reason of the slander her health was impaired, and that she was not fully able to perform her accustomed household labor.

Ross answered by special exceptions, general denial, and that, if the words were spoken by him, they were true.

The case was tried November 27, 1874, and resulted in a verdict and judgment against Ross for $1,000, from which he appealed and assigned errors.

The court charged the jury, “Words spoken of another imputing the commission of an offense against law constitute slander, and a person so spoken of may maintain an action for such slander without any proof of actual injury; but if the words spoken do not impute the commission of an offense, they may constitute a slander, if the person of whom they are spoken is injured by the words. To charge a woman with a want of chastity is not to charge her with an offense against the law; and, therefore, to render such charge slander, it is necessary to prove not only that the words imputing such a charge were spoken of the plaintiff by the defendant, but that the plaintiff was actually injured by the charge thus made.

If you find, from the evidence, that the defendant spoke the words set forth in the petition of the plaintiff, Mrs. Fitch, meaning and intending to charge her with a want of chastity, and that in consequence of such words the plaintiffs have been injured in health, property, or reputation, then you should find a verdict for plaintiffs for such amount as you think a sufficient compensation for such injury; and in estimating damages you are not confined to the amount of damages actually proved, but you will take into consideration the degree of malice prompting the defendant to utter the words, the probable consequences to the plaintiffs, and all the circumstances of the case.

The burden of proof is upon the plaintiffs to establish the slander and the resulting damage by a preponderance of evidence. If they fail to prove that the words were spoken by the defendant as charged in the petition, and that plaintiffs were injured thereby, then you should return a verdict for the defendant.”

Moore & Organ, for plaintiff in error.--We insist that the allegations of defendants in error, in their petition, were too general and indefinite. They should have given the names of those persons, or at least some of them, who had refused them employment; who of their neighbors had refused them civil or polite treatment; who of their boarders had left their boarding-house, or who had refused to send their children to school.

Under the common law system of pleading, in this form of action, such particularity has been uniformly required, when, from the nature of the case, it was capable of such particularity. See Starkie on Slander, vol. 1, marg. ...