Ward v. Merriam
| Decision Date | 17 October 1906 |
| Citation | 193 Mass. 135,78 N.E. 745 |
| Parties | WARD v. MERRIAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David I. Walsh and Thomas L. Walsh, for plaintiff.
C. E. Tupper, for defendant.
This is an action of slander. At the close of the evidence, the defendant requested the ruling that the plaintiff could not recover upon the first and third counts. He also asked for a specific ruling as to the effect of certain words claimed by the defendant to have been spoken, instead of those alleged in the first count. By an answer to a question the jury found that the defendant used the language set forth in the first count. On this ground the defendant's exception to his request for the specific ruling must be overruled.
The question presented by the other two prayers is a very different one from that which would arise if the defendant had demurred. The defendant having failed to demur and having gone to trial upon the issues raised by the pleadings as they stood, it is not now open to him to raise the point that the first and third counts do not set out a good cause of action. Although the declaration may not set out a cause of action by reason of a failure to state sufficient circumstances to show the sense in which the words were spoken, this objection can be taken only on demurrer. After verdict, it is only open to the defendant to argue that upon all the evidence the words were spoken under such conditions as not to amount to the charge of a crime. Chase v. Sherman, 119 Mass. 387. Many of the cases cited by the defendant arose upon demurrers and are therefore of little weight upon the question now open for consideration.
Taking into account all the circumstances disclosed by the evidence, there was enough to warrant the jury in finding that the words were spoken in such a sense as to amount to a charge of adultery. It is of no consequence that the statement was put in the form of a question. Insidious and harmful insinuations may often be conveyed under the cover of an inquiry. If it is open to the defendant to now question the sufficiency of the proof as to the plaintiff's being a married woman ( Oulighan v. Butler, 189 Mass. 287, 75 N.E. 726), there was enough to warrant a finding that she was so reputed, and this, in the absence of any other evidence, was all that was required of the plaintiff. 1 Greenleaf on Evidence, § 140c.
Exceptions overruled.
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