Sesler v. Montgomery
Before: Hayne, McFarland
Synopsis
Slander—Communication by Husband to Wife—Publication.—¡ Communication by a husband to his wife of slanderous words in regard to a woman is a publication.
Slander—Evidence.—In an Action for Slander, Where It is Shown That Defendant accused plaintiff of perjury and want of chastity, in a room where his wife was, in a voice loud enough- to be heard1 outside, there is sufficient evidence that she heard and understood the words.
Slander—Privileged Communication—Husband and Wife.—Under Civil Code of California, section 47, providing that a privileged communication is one made without malice to a person interested therein, by one who is also interested, or by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, and section 48, providing that malice is not to be inferred from the mere fact of publication, a finding of the jury that a communication from a husband to his wife, with whom he was on bad terms, slanderous of a female acquaintance of hers, who had testified for her in divorce proceedings between her and her husband, was made with malice, and was not privileged, cannot be disturbed.
Trial—Argument of Counsel—Failure to Introduce Evidence.— Under Code of Civil Procedure of California, section 2061, subdivision 6, providing that evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and the other to contradict, comment to the jury upon the failure of defendant to introduce his wife to corroborate his own testimony is proper.1
Opinion — Hayne
HAYNE, C. Action for slander. Verdict and judgment for plaintiff. Defendant appeals. Several points are made.
1. It is said that there was no publication. The facts are that the words were spoken to the defendant’s wife, and were overheard by the plaintiff, who was listening in the corridor. The point is that husband and wife are in law one person, and that therefore a communication between them is not “published, ’ ’ within the meaning of the law of slander. It is to be observed that this is a different thing from saying that the communication was privileged. There must be a publication before the question of privilege can arise. We have not been referred by appellant to any decision in support of the precise point, except Trumbull v. Gibbons, 3 City H. Rec. 97, decided by an inferior court. We have not had access to this report, but from the mention of the ease in Townshend on Slander we should infer that the decision proceeded on another ground, and that what is said in relation to the question in hand is merely a dictum. Nor have we been able to find any case exactly in point. Upon principle we should say that there was a publication. That husband and wife are one person is a mere fiction, and is not true for all purposes. The tendency of modern law, especially in California, is certainly not to extend the operation of the fiction. Nor do we see any reason why it should be extended, at least in the present diree[29]tion. The reputation of a woman can certainly be injured by slanderous communications to her female friends; and the fact that the communication came through a husband would not ordinarily deprive it of its injurious effect. Furthermore, if husband and wife are one person to the extent that a communication from the husband to the wife concerning a third person is not published, it would seem to follow that a communication from a third person to one of the spouses concerning the other would not be a communication concerning a third person, so as to constitute a slander. But the contrary has been decided. A communication to one of the spouses concerning the other may be slander: Wenman v. Ash, 13 Com. B. 836; Schenck v. Schenck, 20 N. J. L. 208; Odgers, Sland. & Lib. [152]
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