Brinsfield v. Howeth

Burke, J., delivered the opinion of the Court. This is an action of slander in which the appellee recovered a judgment of four thousand dollars against the appellant in ²⁸² the Circuit Court for Wicomico County to which Court the case had been removed from Dorchester County where it was originally instituted. The plaintiff is a young unmarried woman, a resident of Dorchester County, and was engaged in teaching in the public schools of 'that county. Sections one and two of Article 88, Code 1904 provides that all words spoken falsely and maliciously touching the character or reputation for chastity of any woman, whether single, or married, and tending to the injury thereof shall be deemed slander, and shall be treated as such in the several Courts of law in this State; and any woman, whether single or married, whose character, or reputation as a woman of chastity may be traduced or defamed by any person may sustain an action of slander in her own name against such person.

The appellee had instituted a prior suit for slander against the appellant in the Circuit Court for Dorchester County, and this case was also removed to the Circuit Court for Wicomico County where it was tried, and at the conclusion of the plaintiff’s case the Court granted a prayer that the plaintiff had offered no evidence legally sufficient to entitle her to recover. Whereupon the plaintiff submitted to a judgment of nonpros.. Two of the causes of action in this case are the same as set out-in the former declaration. The declaration in this case contains three counts, and the appellant demurred to each count.

This demurrer was overruled, and issue was joined upon the general issue plea. The plaintiff brought this suit without having first paid the costs in the former case, and the defendant moved the Court to stay all further proceedings in this cause until the costs of the former action were paid by the plaintiff. This application was denied. During the trial of the case seventeen bills of exceptions were taken to the rulings of the Court upon questions of the admissibility of evidence; the eighteenth exception relates to the action of the Court upon the prayers and upon the special exceptions filed by -the defendant to the granting of the plaintiff’s sixth and eighth prayers.

One of the questions in the case is as to whether certain statements, which will be men ²⁸³ tioned later, alleged to have been made by the defendant were privileged communications. The two important questions in the case are, first: Does the declaration in any of its counts set forth words which are per se actionable? Secondly, were any of the statements alleged to have been made by the defendant privileged? The solution of these questions must be found in the application of well settled rules to the averments of the narr., and to the facts disclosed by the record.

The declaration contains three counts, in each of which there is an innuendo and a proper colloquium. There is, however, no prefatory inducement, or statement of the circumstances .under which the words were spoken, and no averment of extrinsic matter to'show that the words set forth in each count had a local, provincial, or peculiar neighborhood meaning. The alleged defamatory words set out in the first countare: ist. “She,” the plaintiff, “is a fast girl and not fit to teach school.” 2nd. “She,” the plaintiff, “is a girl of loose character and not fit to teach school.” 3rd. “I did say that she,” “the plaintiff,” “was of a loose character and not fit to teach school.” The words laid in the second count are: “He” (the said W. Grayson Smith), “has appointed fast girls as school teachers and one of them became pregnant,” (meaning pregnant with child), and on being asked which teacher it was that had become so pregnant, the defendant replied, “Why that was this Nannie Howeth,” (meaning the plaintiff), and the defendant thereby then and there meaning and imputing a want of chastity to the plaintiff. Those set forth in the third count are: “I,” (meaning the defendant), “am only sorry for one thing that I,” (meaning the defendant), “did not strap” (meaning have carnal intercourse with) her,” (meaning the plaintiff), when “I,” (meaning the defendant) "had the chance.” The innuendoes in the first and second counts are that the defendant meant to impute a want of chastity to the plaintiff; and that by the use of the words declared on in the ²⁸⁴ third count the defendant meant that at some time in the past the plaintiff had consented, or would have consented to have sexual intercourse with himself, and that he thereby meant and imputed to the plaintiff a want of chastity.

( If the declaration is not otherwise good, the innuendoes can-1 not make it good. They cannot add to, or enlarge the sense 1 of the words used, and if the alleged defamatory words do not 'constitute slander in themselves, the innuendoes cannot enlarge or add to their legal meaning and effect. The innuendo is merely a form, or mode of introducing explanation; it serves -to point out some matter already expressed, it may apply what is already expressed, but cannot enlarge the sense of the previous words. The legal effect of the innuendo is a question of law which arises under the demurrer.

This Court said in Lewis v. The Daily News Company, 81 Md. 472 : “Upon demurrer it is always the province of the Court to determine whether the words charged in the declaration amount in law to libel or slander. • Dorsey v. Whipps, 8 Gill, 462 ; Haines v. Campbell, 74 Md. 158 ; Avirett v. The State, 76 Md. 510 . It is equally a matter of law as to whether an innuendo is good; that is to say, whether it is fairly warranted by the language declared on, when that language is read, either by itself, or in connection w’ith the inducement and colloquium, if there be an inducement and colloquium set forth. Avirett v. State, supra; Solomon v. Lawson, 8 Q. B. 828.” Mr. Chitty in his work on Pleading, vol. 1, p. 4.00, states the rule to be that: “If the libel or words do not naturally and per se convey the meaning the plaintiff wishes to assign to them, or are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to show that they are actionable, it must be expressly shown that such matter existed, and that the slander related thereto.” In Peterson v. Sentman, 37 Md. 153 , the words declared on were: “You,” (meaning plaintiff) “are a bad woman, and keep a bad house, and I can prove it;” innuendo, meaning thereby to charge that the plaintiff was not a chaste woman, was a whore, and kept a common bawdy house. In considering ²⁸⁵ the legal effect of these averments the Court said: “The words, however objectionable they may be, admit of other constructions, which readily suggest themselves to the mind, than that given to them by the plaintiff.

To say a person keeps a bad house may mean a disorderly house, or one that is dirty or comfortless. So indefinite is their meaning, that to render them a foundation of an action like the present, the declaration must set out such a statement of circumstances under which’they were used, or of the subject matter of the conversation, as will indicate that they were applied in a sense imputing to the plaintiff the wrong complained of. But this, under the rule of pleading firmly established by all the authorities, must be done through a colloquium and not by way of innuendo, the only object of which is to point to and explain what has before been introduced in the declaration.” In that case the Court held that the words “You keep a bad house” were not actionable, and in the absence of appropriate prefatory averments could not be made so by the innuendo. In the case of Chite v. Chite, ioi Wis. 137 the words declared on were “you,” the plaintiff meaning, “have been going with Edd.

(meaning one E. C.) “You,” the plaintiff meaning, matched him in the berry patch on the bluff, and here upstairs, and I saw you go up.” The Court said: “The question arising is: Do the words set forth in the complaint charge sexual intercourse? We think not. Words are to be construed in the plain, popular sense in which people would naturally understand them. Bradley v. Cramer, 59 Wis. 309 .

We are not aware that the words “match,” or “matched,” has ever acquired the meaning of illicit or sexual intercourse. It is sometimes used as denoting honorable marriage, but the lexicographers go no further. If there was a local, or provincial use of the word which gave it the meaning contended for, or if there were extrinsic circumstances by reason of which it was so understood by the hearers at the time that words were uttered, these facts should be alleged by way of inducement. Newell Slander and Libel (2nd ed.) 603.

The innuendo cannot enlarge the natual and ordinary meaning of the words.” ²⁸⁶ If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts or circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment. 13 Ency. Pl. & Prac., 32. Words will not be construed to impute unchastity, if in their milder sense they may have another and more harmless meaning, unless it is made to appear by the averment of extrinsic facts that the defendant meant to tráduce the character of the plaintiff for chastity. Tested by these rules, the words declared on in the first and third counts of the declaration are not per se actionable.

These words do not naturally and upon their face convey the meaning that the plaintiff is unchaste. They may refer to habits, or imprudent conduct other than unchastity, and unaccompanied by averments of local meaning of a grosser nature, they must be construed in their more innocent sense. The declaration sets up a claim for special damages sustained by reason of publishing the words alleged in each count. The allegation is that by reason of said publication the plaintiff “Lost her situation as teacher at Galestown, in said county, and was prevented from obtaining various other desirable situations as school teacher.” If the defendant by the use of language attributed to him meant to-impute a want of chastity to the plaintiff, an averment may be introduced that by a local, or neighborhood understanding such words mean, or are understood to impute the meaning ascribed to them by the innuendo.

Under such a declaration the plaintiff could prove ‘‘any extraordinary, or peculiar meaning expressed by the words in question.” Newbold & Sons v. Bradstreet, 57 Md. 51 . And could also prove in what sense the hearers understood the words. Goldsborough v. Orem & Johnson, 103 Md. 683 . Although the words charged in the first and third counts are not in themselves actionable, under the averments of the nar, the plaintiff nevertheless would have been entitled under the claim for special damages to recover such damages in fact as she may have ²⁸⁷ sustained in consequence of their publication, and, except for the fact that the first count contains three distinct causes of action, we should hold the demurrers should have been properly overruled.

The demurrer to the first count was properly sustained, because that count is clearly bad for duplicity. This defect, as well as the other to which we have adverted, may be cured by proper amendment. 2. We will now examine the question of qualified privilege which arises under several of the prayers. The law upon this subject is well settled, especially in this State. “If the facts are uncontroverted, it is the province of the Court to determine whether the publication is privileged.

If. however, the evidence is uncertain and conflicting, it is proper for the Court to instruct as’to what facts amount to privilege, and leave it to the jury to determine whether those facts are proved.” 13 Ency. Pl. & Pr., 106; Coffin v. Brown, 94 Md. 195 . In the case of Fresh v. Cutter, 73 Md. 87 , which in one of its features was similar to this, the plaintiff had been employed by the defendant, and after he had left the defendant’s service and was about to enter that of a Mr. Allen, the defendant, voluntarily and without being requested, spoke the defamatory words declared on. There was evidence in the case tending to show that Fresh honestly believed that it was his duty to tell Allen what he knew concerning the plaintiff; that he told Allen these things without being asked, honestly believing it was a duty he Owed to his neighbor, and for the sole purpose of putting him on his guard.

The defendant testified that he had not been actuated by malice, or ill will, and that he had never had any bad feeling against the plaintiff Inconsidering thequestion whether the statement made by Fresh to Allen, under the circumstances named, was a privileged one, this Court, speaking through Judge McSherry, said: “If privileged, all the authorities agree in holding that it is not absolutely or unqualifiedly, but only conditionally, so. If falsely and maliciously made, it would be actionable. Malice is the foundation of the action, and in ordinary cases is implied from the slander; but there may be justification from the occasion, and when this ²⁸⁸ appears an exception to the general rule arises, and the words must be proved to be malicious as well as false.” Beeler v. Jackson, 64 Md. 593 . This justification from the occasion arises, in the class of cases now being considered, when a communication is made “bona Jide upon any subject matter in which the party communicating has an interest, or in reference to which- he has a duty, if made to a party having a corresponding interest or duty,” although the communication “contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral