Wimer v. Allbaugh

• Decision Date: 03 June 1889
• Citation: 42 N.W. 587,78 Iowa 79
• Parties: WIMER v. ALLBAUGH.
• Court: Iowa Supreme Court

78 Iowa 79

42 N.W. 587

WIMER

v.ALLBAUGH.

Supreme Court of Iowa.

June 3, 1889.

Appeal from district court, Louisa county; W. R. LEWIS, Judge.

Action for slander. There was a judgment for plaintiff, and defendant appeals.Newman & Blake and R. Caldwell, for appellant.

Arthur Springer, D. N. Sprague, and E. W. Tatlock, for appellee.

GRANGER, J.

The petition charges, in substance, that the defendant said of and concerning the plaintiff, “she is a whore;” and, “She is ornrier than two hells, and I can prove it,”--meaning to charge her with being a whore.

1. On the trial the following testimony was given on behalf of plaintiff by her sister Sadie: “On January 1, 1887, defendant said to my sister Rosa that she was ornrier than two hells. I was present, and heard it at the time. Question. I will ask you to state, Sadie, what you understood him to charge by that. Answer. I understood by the language used that he meant them words against our character; that we was unchaste. I understood him to mean by that that Rosa was an unchaste woman.” Substantially the same testimony was given by plaintiff and Amanda Grant, against the objections of the defendant, and the rulings are assigned as error. It is charged in the petition that in using the expression defendant meant to charge plaintiff with being a whore. The words themselves do not signify that. Without explanation, we regard them of very uncertain meaning. Considerable is said in argument as to the word “ornery.” It has not such a place in the English language that any lexicographer has ventured to define it, or give it authoritative recognition. It has much of the impress of a provincialism. Its use seems to be peculiar to certain localities or people. People generally have heard the word used, and know something of its import. While it is a word used to express kind or quality, it is not alone applicable to persons. It is doubtless never used to express good qualities. Its use is generally to express the opposite. It does not, in some of its uses, differ from the words “common” or “mean.” Substitute either of these words in the expression charged, and the legal status would not be materially different; and in such a case there could be no question as to the right of the party to prove what the understanding of the hearers was. In such cases the expressions are ambiguous. They may have one meaning or another, and the intent and understanding must be established by proof. McLaughlin v. Bascom, 38 Iowa, 660, and cases there cited.

2. The defendant's wife and one Ellen Mulhern were sworn for the defendant, and defendant asked of each, in substance, if they understood any language used by Mr. Allbaugh to import a want of chastity. The question was objected to as leading and incompetent, and the objection was sustained. The argument of appellant is that, if the understanding of plaintiff's witnesses was material, that of the defendant's would be. The reasoning is certainly good, if the circumstances are the same. The witnesses for the plaintiff testified that they heard the speaking of the words charged, and of their understanding of them. The witnesses for the defendant each say they did not hear the words, but heard other words, which would in no sense constitute a cause of action. They could not, of course, testify as to their understanding of the words charged, for they did not hear them. It is not competent to prove an understanding as to other words.

3. The defendant asked the court to give to the jury the following instruction, which was refused, “The court instructs the jury that to say of a woman or girl that “she is ornrier than two hells” will not warrant the innuendo, meaning, or construction that she is a prostitute,...