Nolan v. Traber

Bowie, J.,

delivered the opinion of the Court.

This appeal involves the right of a wife to an action for slanderous words imputing to her a crime committed by her jointly with her husband. The common law assuming that the free agency of a married woman is merged in the dominion of her husband, presumes that if a wife act in company with her husband in the commission of a felony, other than treason or homicide, she acts under his coercion and consequently without any guilty intent.

Sir William Blackstone said this doctrine was at least a thousand years old in England, being found among the laws of King Ina, the West Saxon.

Hence, words which charged the wife with crimes in the presence of her husband, or jointly with him, imnuted no act for which she would be criminally liable, and therefore constituted no slander and were not actionable according to the earlier authorities.

*468 An eminent jurist in a recent work says, this presumption may now be rebutted by positive proof that the woman acted as a free agent; and in one case that was much discussed, the Irish Judges appear to have considered that such positive proof was not required, hut that the question was always one to be determined by the jury on the evidence submitted to them. Rex vs. Stapleton, 1 Jebb. C. C., 93; Taylor’s Law of Evidence, p. 191, (6th Edition.)

The relation of husband and wife, however absolute in the past, no longer implies such subserviency of the latter as to make her the slave of her husband.

By gradual modifications of the common law, the wife has become in a great measure the peer of the husband in the control of her property and person, enjoying exemptions and privileges which raise her above all suspicion of' moral constraint, except in rare instances. The legal status of the wife, although legally inferior in respect of the “ jus disponendi” of some species of property, and subjection to marital rights, is yet so elevated as to protect her from all necessity of compliance with the husband’s will in matters “ mala in se.” The better opinion would seem to be that the presumption of coercion by the husband, in cases of indictment or prosecutions against husband and wife jointly, is only prima facie, subject to be controlled by evidence that the wife intervened voluntarily and not by compulsion. Rex vs. Hughes, 2 Lewin C. C., 229; Rex vs. Pollard, 8 C. & P., 553; Rex vs. Stapleton, 1 Jebb. C. C., 93; 1 Greenleaf Evid., sec. 28, note 5; 3 Greenleaf Evid., sec. 7.

The first count of the plaintiffs’ narr. alleged that the defendant charged the appellant, Bridget Nolan, with an offence for which she was liable to he prosecuted and punished criminally, if found guilty. It does not charge that the act was done by the husband and wife in the presence of each other. The plaintiffs’ first prayer, premising that if the jury found “ the stable was destroyed by *469 fire, and that the appellee spoke the words and that he meant hy those words that the plaintiffs had willfully burned the stable,” affirmed that the plaintiffs were entitled to recover.

The third prayer, relying upon the same facts and words, and that the appellee meant by those words that the plaintiff, Bridget, had willfully burned the stable, affirmed that the plaintiffs were entitled to recover.

It is objected to these prayers that they require the jury to find what the legal meaning of the words charged did not import, and what the innuendo did not aver, and contrary to the innuendo incorporated in the narr.

The office of the innuendo is “to explain and show the applicability of some matter already expressed ; it seems to point out where there is a precedent matter, but never for a new charge; it applies to what is already expressed.” Steph, N. P., 2568, Title, Slander; Rex vs. Horne, Cowp., 684; Black vs. Holmes, 1 Fox & Smith, (Irish,) 31-48.

Where the words import a charge of crime and the action is for that charge, an innuendo is unnecessary. 2 Ghitty’s Prec.,p. 547, note t.

The precedent matter charged an offence for which the plaintiffs might have been jointly or severally indicted, and although no innuendo was necessary, yet in either aspect of the case presented by the prayers, the plaintiffs were entitled to recover.

The defendant’s prayer, being the converse of the propositions expressed in the plaintiffs’ first and third prayers, cannot be sustained. But it is further insisted that the legal meaning of the words charged in the narr., did not import that the stable had been loillfully burned, nor did the innuendo so aver, wherefore it was error to submit to the jury to find a meaning “they did not naturally or legally bear.”

It is the very gist of the action for slander that the words were spoken maliciously. To ascertain this, the *470 jury must determine whether the act imputed to the plaintiffs was willful or involuntary.

(Decided 28th June, 1878.)

Without will or intention on their part, the act complained of would have been an accident. It was therefore incumbent upon the plaintiffs to prove, and the jury to find, the injury charged to have been committed was willful.

Where that is found the law implies malice.

No point has been made in this Court upon the rejection of the plaintiffs’ second prayer prescribing the measure of damages. We perceive no error in the principles upon which that prayer is based ; it seems to us conformable to the practice and decisions in this State The Court below being in error in refusing the prayers of the plaintiffs and granting the prayer of the defendant, the judgment will be reversed and new trial awarded.

Judgment reversed, and neia trial aioarded.