Peterson v. Sentman

Slander— Declaration— Colloquium — Innuendo. Charging a person with keeping “abad house,” is not in itself actionable. The words do not necessarily imply “a bawdy house;” they may mean a disorderly house, or one that is dirty, or comfortless. To render them the foundation of an action for slander, as having been used in the sense of “a bawdy house,” 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 that sense. But this must be done through a colloquium, and not by way of innuendo. Unsupported by the necessary allegations of a colloquium, the innuendo can never be taken to expand or enlarge the meaning of the words used, and give to them a particular meaning, different from that in which they would be ordinarily understood in their more innocent signification. Words that are not actionable ex vi termini, cannot be made so by an innuendo, but must be aided by a proper averment and colloquium, which will warrant the explanatory meaning given them by the innuendo.

Appeal from the Circuit Court for Harford Comity, This was an action of slander brought by the appellee against the appellant in the Circuit Court for Cecil County, and removed at the instance of the latter to Harford County. The declaration averred : For that, whereas, the said plaintiff is a good, honest, true and faithful citizen of the State of Maryland, and as such hath always behaved and conducted herself. And for that, whereas also the plaintiff is a feme sole, and a housekeeper, and hath always been a virtuous, modest and chaste citizen, and until the committing of the grievances hereinafter mentioned, had always been esteemed to be of unblemished reputation, and that before and at the time of the committing of the said grievances, she, the said plaintiff, enjoyed the society, conversation and friendship and countenance of all good, worthy and estimable citizens of the said State, and lived and associated with them on terms of mutual confidence, esteem, &c. Yet, the said defendant, well knowing the premises and envying the happiness of the said plaintiff, and maliciously contriving and intending to injure and ruin her in her character, and to deprive her of the good will, society, conversation, friendship and commerce of the good citizens of said State, and especially to injure her in her character for chastity, virtue and modesty in the estimation of all good citizens of said State, and particularly in the estimation of all good citizens of the' community where she resides and maintains her household, to wit: On the — day of-, A. D. 186-, at the county and State aforesaid, in a certain discourse which he, the said defendant, then and there had in and about the plaintiff's character and reputation for chastity, in the presence and hearing of divers good and worthy citizens of said State of Maryland, to the said plaintiff, and of and concerning said plaintiff, in the presence and hearing of said citizens, falsely and maliciously spoke to her, and published, to, of and concerning her, the said plaintiff, then and there being a feme sole, the several false, scandalous, malicious and defamatory words touching her character and reputation for chastity, and tending to the injury thereof,' following, that is to say: “Yo.u” (meaning the plaintiff) “are a bad woman, and keep a bad house, and I can prove it,” meaning thereby to charge that the plaintiff was not a chaste woman, was a whore, and kept a common bawdy house. And for that in a conversation concerning the chastity of the plaintiff, the.said defendant falsely and maliciously spoke and published of the said plaintiff, then and now being a feme sole, the words touching the character for chastity of the said plaintiff, being a feme sole, and tending to the injury thereof, following that is to say; “You” (meaning the plaintiff) “are a bad woman, and keep a bad house, and I can prove it,” meaning thereby and intending to assert and to be so understood, that the plaintiff was an unchaste woman and kept a bawdy house. And for that the said defendant falsely and maliciously ■spoke and published of the said plaintiff then and now being a feme.sole, the words touching the character and reputation for chastity of the plaintiff, being a feme sole, and tending to the injury thereof', following, that is to say: “She” (meaning the plaintiff) “was an ornary” (meaning ordinary) “whore and kept an ornary house for ornary men to go to,” meaning thereby that she kept a bawdy house. Whereby the plaintiff hath sustained damage and claims therefore ten thousand dollars. To this declaration the defendant pleaded not guilty, and two special pleas in justification. Issue was joined on the first plea ; and the plaintiff, demurred to the special pleas in justification ; the Court sustained the demurrer. The defendant then pleaded five pleas, the first not guilty, on which issue was joined, and the others in justification ; the second plea was as follows : And for a further plea in this behalf the defendant saith that the plaintiff ought not to have and maintain her said action against him, because he says that before the speaking and publishing of the said words, of and concerning the said plaintiff, iii the said declaration mentioned, to wit, on the first day of January, 1860, and from that time until the first day of April in the year 1866, the said plaintiff was living in a certain house of her father, situated in Cecil County, and that during the time aforesaid, to wit, on the first day of September, in the year 1865, and on the first day of January, in the year 1866, and on the fifth day of February, in the year 1866, and on divers other days and times during the period aforesaid, while she was living as aforesaid at the house of her father, the said plaintiff then and there permitted a certain Elisha Brown and a certain David Moore, and divers other male persons, to take and use improper, lewd and indecent liberties and familiarities with her, and with them indulged in improper, lewd and indecent conduct, and then and there had criminal intercourse and carnal connection with them; wherefore the defendant saith that he well might and did speak and publish the said words in plaintiffs declaration alleged, of and concerning the said plaintiff, meaning thereby, as the said plaintiff hath alleged, and that the said words and the said meaning thereof were true, because he says the same were spoken of and concerning the said liberties, familiarities and lewd and improper conduct by her then and there permitted and indulged in, and her said criminal intercourse and carnal connection with said David Moore and with divers other persons at the times and place aforesaid. ' The third plea was pleaded to the first count of the declaration, and averred that the plaintiff ought not, by reason of anything in the first count of her declaration alleged, to have or maintain her action against him, because, that before the speaking and publishing of the words in said count mentioned, of and concerning the plaintiff, she permitted the same lewd and indecent familiarities and indulged in the same criminal intercourse ; the plea then "concluded as follows: Wherefore the defendant says he well might and did speak and publish the said words in said first count mentioned, of and concerning the said plaintiff, and he avers that the said words so spoken by him were true, and that he did mean thereby to say that the plaintiff was not a chaste woman, hut that he did not mean thereby that she kept a common bawdy house. The fourth and fifth pleas were similar to the third, being pleaded, the one to the second count of the declaration, and the other to the third. To these pleas of justification the plaintiff demurred and the Court sustained the demurrer. The defendant thereupon pleaded five new pleas, on which issue was joined. At the trial the plaintiff proved that the defendant had spoken the words as alleged in the first and second counts of the declaration, and with a slight difference those as alleged in the third count. The defendant offered evidence to sustain his pleas of justification.. • First Exception. — The defendant proved by Alameda Peterson, that she had seen the plaintiff and Elisha P. Brown in bed together more than once, in the plaintiff’s room — -that she had never seen them in bed together in Brown’s room; that she had seen David Moore in bed with the plaintiff once; that when he jumped in the bed, he broke the bed rail; that she and her sister went into the plaintiff’s room and saw her and Brown in bed together, and that she sometimes slept with the plaintiff when Brown was there. The witness said she told her mother about the breaking of the bed rail, at the time, but did not tell of the other occurrences until some time in March, 1866. To impeach the witness, proper foundation having been laid by specific questions, the plaintiff proved that the witness had sworn under a commission in this case, that no one was present when she saw the plaintiff and Brown in the same bed; that she told her mother of the occurrence as soon as she went home, a day or two after-wards ; that it was the only time she ever saw the plaintiff and Brown occupy the same chamber, or sleep in the same bed; that she had seeh Moore and the plaintiff in bed together several times, &c. The defendant thereupon, to corroborate the witness, offered to prove by Adelia Peterson, her mother, that the occurrence in which the bed rail was broken was communicated to her by the witness in 1865, while she was living at the house of her grandfather, but that the other occurrences were not communicated to her until sometime in March, 1866. To this corroborating testimony the plaintiff objected, and the Court sustained the objection. The defendant excepted. Second Exception. — The plaintiff prayed the Court to instruct the jury as follows: 1. That if the jury shall find from the evidence, that the defendant spoke and published of and concerning the plaintiff, the words charged in the declaration ; in ascertaining the meaning of such words, they must construe them in the sense in which hearers of ordinary and reasonable understanding would ascribe to them, and in which they are most likely to bo understood by the hearers. 2. That if the jury shall find from the evidence, that the defendant spoke and published of and concerning the plaintiff, the words alleged in the declaration, or in any one of the counts thereof, and that at the time of such speaking the plaintiff was a feme sole, then the plaintiff is entitled to recover, unless they shall also find from the evidence that the plaintiff had carnal connection with Elisha P. Brown'and David Moore, or either of them, as alleged in the defendant’s plea of justification. 3. That if the jury shall find from the evidence, that the defendant spoke and published of and concerning the plaintiff, the words alleged in the declaration, or in any of the counts thereof, and that such words would naturally and most likely be understood by hearers of common and reasonable understanding, to mean that the plaintiff kept a bawdy-house, then the plaintiff is entitled to recover, although the jury should also find from the evidence that the plaintiff had carnal connection with Elisha P. Brown and David Moore, or either of them, as charged in the defendant’s plea of justification. 4. That if the jury shall find from the evidence, that the words alleged in the declaration, or in any of the counts thereof, in the sense ascribed to them by the plaintiff, were spoken and published of and concerning the plaintiff by the defendant, and that, at various other times, the defendant spoke other words of like import of her, then the plaintiff is entitled to recover, and the jury may give exemplary damages, unless the jury shall be satisfied from the evidence that the defendant’s plea of justification is true. .5. That if on the whole evidence, the jury shall find for the plaintiff, they may give compensatory and punitive damages. And the defendant offered the following prayers: • 1. That the plaintiff is not entitled to recover in this action, unless the jury find from the evidence that the defendant spoke the words charged in the declaration, or in some one of the counts,, and that he spoke them with the meaning affixed to them in the plaintiff’s declaration, or that he was or intended to be so understood. 2. That if the jury find that the defendant did not speak, of and concerning the plaintiff, the words stated in the declaration to have been spoken by him, meaning thereby that she kept a bawdy-house, and also find that she was unchaste, they must find their verdict for the defendant. 3. If the jury find from the evidence that tho defendant spoke and published, of and concerning the plaintiff, the words alleged in the declaration, and that he meant thereby that she was unchaste, and also find that the plaintiff had carnal connection with Elisha P. Brown or David Moore, as stated in the defendant’s plea of justification, and was unchaste, she is not entitled to recover in this action. 4. If the jury find that the defendant spoke and published, of and concerning the plaintiff, the words alleged in the declaration, and that he meant thereby that she was unchaste, and also find that she had carnal connection with Elisha P. Brown or David Moore, as stated in the defendant’s plea of justification, and was unchaste, she is not entitled to recover, unless the jury find that in speaking said words the defendant meant to charge that she kept a bawdy-house or was so understood by those who heard them. 5. That in finding the meaning proper to be attached to the words charged in the declaration to have been used by the defendant, and which the jury may find were spoken by him, the jury must give to such words their ordinary meaning, in their common acceptation, and if they may be understood in a sense not criminal, they must be so interpreted, unless the jury find from the words themselves or from the evidence in the case, that they were meant by the defendant in the sense in which the plaintiff has averred they were spoken or were so understood by those who heard them. 6. That in finding the meaning of the words charged in the declaration, which the jury may find were spoken by the defendant, the jury cannot attach to them any meaning which they do not themselves import, in their ordinary sense, because other words spoken by the defendant on other occasions may import such meaning. 7. That the words charged in the plaintiff's declaration to have been spoken by the defendant, of and concerning the plaintiff, do not of themselves import, that she kept a bawdy-house. 8. That it is not necessary for the defendant, in order to maintain his plea of justification, to prove by direct evidence that the plaintiff had carnal connection with Brown or Moore, but it is sufficient if the jury find such fact from evidence in the cause, sufficient to satisfy a reasonable mind*, and that the allegation is substantially true. 9. That even if the jury should find that the defendant’s plea of justification is not fully sustained by the evidence, but find that some of the facts relied upon in said plea are true, or that the defendant had reasonable grounds to believe and did believe that the words spoken were true as alleged, the jury may consider such finding in estimating damages. The Court (Guasón and Bateman, J.) granted the prayers of the plaintiff, and rejected those of the defendant, except the eighth, which they granted with a modification as follows: 8. That it is not necessary for the defendant, in order to maintain his plea of justification, to prove by direct evidence that the plaintiff had carnal connection with Brown or Moore, but if the jury shall find fropi all the facts and circumstances offered in evidence that the plaintiff had carnal connection with Brown or Moore, their verdict must be for the defendant on the plea of justification. The defendant excepted to the ruling of the Court in rejecting his prayers, and in granting those of the plaintiff. The jury rendered a verdict in favor of the plaintiff for $3,683, and judgment was entered for .the same, with costs. The defendant appealed.