Nidever v. Hall

McKee, J. This is an action of slander. Substantially the charge is, that pending an action for seduction, brought by Barbara M. Hook against James A. Hall, B. F. Hall, the father of the said James A., in the presence of the father of the plaintiff in this case, and in the presence of several other persons, published of and concerning the plaintiff these words: “He (the plaintiff) virtually acknowledged to me that he had sexual intercourse with Barbara M. Hook”; and that by the publication of these words to his father and to the other persons, pending the suit for seduction, the defendant intended to impute to him a want of chastity.

At common law the words laid in the complaint were not actionable in themselves, or by reason of the existence of extraneous acts and circumstances tending to prove that they were spoken for the purpose of imputing a want of chastity, because unchastity as a subject of ecclesiastical cognizance was not punishable in common-law courts. In that particular, however, the common law has been changed by the Code law of the State. Seetion 46 of the Civil Code declares: “ Slander is a false and unprivileged publication other than libel, which:—

“1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

“2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

“ 3. Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit;

“4. Imputes to him impotence or a want of chastity; or,

“5. Which, by natural consequence, causes actual damage.” And upon subdivision 4 of the section this action was brought.

Plaintiff did not consider the words laid in his complaint as slanderous in themselves; he, therefore, connected them by proper averments with the extrinsic facts and circumstances in which they were published in order to show the slanderous meaning expressed by them.

[81]On the complaint- defendant took issue by specific denials of each of its averments; and he affirmatively alleged that there was, in general circulation, in the neighborhood and surrounding county where Barbara M. Hook and the plaintiff resided, a report prejudicial to the character of the plaintiff as to his chastity, in connection with the name of the said Barbara, and for the purpose of ascertaining the truth of the report he interviewed the plaintiff himself on the subject; and in that interview the plaintiff acknowledged that the report was true; and afterwards, when the father'of the plaintiff and other persons made inquiries of him as to the matter, he spoke to them the words laid in the complaint, without meaning or intending thereby to assert or charge that the plaintiff was, in fact, guilty of unchastity.