Sesler v. Montgomery

McFarland, J. — Action for slander. Verdict and' judgment for plaintiff. Defendant appeals from the judgment, and from an order denying a new trial.

The evidence shows that the alleged slanderous words were spoken (if at all) in the house of the defendant, in a conversation addressed exclusively to his wife; and the question to he determined is this: Did the speaking of the words under these circumstances to his wife alone constitute a “publication” within the meaning of that word as used in the definition of slander ? (The plaintiff was eavesdropping, and claims to have heard the alleged slanderous words from a point outside of the door of the room in which defendant and his wife were talking.)

The codes of this state provide how marriages may he entered into, and how divorces may be obtained; and they also have certain provisions, different from the rules of the common law, about the property of the spouses, and, to a limited extent, about their power to make con[487]tracts, etc. But in the codes there is no attempt made to change the essential nature of marriage, or to state its manifold incidents and consequences, or to establish new ■rules for the solution of the various questions which arise out of those incidents and consequences. Moreover, although the codes define slander as a “false and unprivileged publication” of certain matters, it does not declare what shall constitute “publication.” For the determination of these questions, therefore,—as there are no provisions about them in the codes,—we must look to the common law, which is the basis of our jurisprudence. (Pol. Code, sec. 4468; Van Maren v. Johnson, 15 Cal. 312.)

It is admitted to be the settled rule that there can be no publication within the meaning of the law of slander, unless the words alleged to be slanderous are spoken to and in the presence of a third person; that is, a person other than the one who speaks and the one of whom the words are spoken. A man entirely alone cannot commit slander by talking aloud to himself. And the final question to be solved is, whether a wife, when spoken to by her husband in the privacy of home, and not in the presence of others, is a “ third person” within the meaning of the law under review, or whether, under those circumstances, there should be applied the doctrine that the husband and wife are civilly one person.

There is no doubt of the general common-law rule that the civil existence of the wife is merged in that of her husband. Blackstone says that “by marriage the husband and wife are one person in law,” and that “the legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.” (Vol. 1, p. 442.) Upon this principle of the legal union of husbands and wives, most of their rights, duties, and disabilities depended. They could not be witnesses for or against each other, because of the maxims, Nemo in propria causa testis esse debet,