Hitchcock v. Caruthers

McFarland, J. Action for slander. Judgment for plaintiff, from which, and from an order denying a new trial, defendant appeals.

1. Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. Respondent contends that this point cannot be heard here, because after appellant had demurred to the complaint on that ground in the court below he stipulated that the demurrer might be overruled, and defendant allowed to answer within a certain time. It is not necessary to determine what consequence would have followed if appellant had expressly stipulated that the complaint did state a cause of action; for it is evident that the stipulation in this case did not go to that extent, and, under any view of the law, did not estop appellant from relying, at any future stage of the case, under section 434 of the Code of Civil Procedure, on the alleged failure of the complaint to state sufficient facts.

But we think that the complaint does state facts sufficient to constitute a cause of action. The main objections made by the appellant to the sufficiency of the complaint are: 1. That there is no distinct averment that plaintiff was an unmarried woman, and therefore she may have been the wife either of the defendant or of the man with whom defendant charged her with having’ sexual intercourse; and 2. That the language alleged to have been used by defendant does not impute [526]to plaintiff a want of chastity. Tl'e plaintiff named in the complaint is “Ida Hitchcock, an infant, by her guardian ad litem, L. W. Scronce,” and she is averred to be of the age of seventeen years. The slanderous language alleged to have been used by defendant about plaintiff refers to her as “the girl.” He is alleged to have said, among other things, that a certain man named Scronce “was cohabiting with plaintiff as his mistress”; that "he was keeping the girl for immoral purposes”; and that he “was using Ida as his mistress.” This, with other language not repeated here, shows that plaintiff was a young unmarried woman, and shows most clearly at least that she was not the wife of the man whose name was connected with her in the alleged slanders.

That the alleged slanderous language imputes to plaintiff a want of chastity is too plain to warrant discussion. We shall not repeat the language here; it is sufficient to say that it charges a want of chastity, not only in plain, but in most gross and indecent terms. And language imputing a want of chastity is actionable per se. (Civ. Code, sec. 46.)