29 Kan. 516 | Kan. | 1883
The opinion of the court was delivered by
This was an action of slander, brought by plaintiff in error (plaintiff below) in the district court of Lyon
“That the defendant, prior to the commencement of this action, and at a time when the plaintiff was, as she now is, a married woman, as the defendant well knew, in a certain discourse which she, the defendant, had in the presence and hearing of divers persons, maliciously spoke and published of the plaintiff the false and malicious words following, that is to say: ‘I do not visit Mrs. Henicke (meaning the plaintiff), would be ashamed to be associated with her (meaning the plaintiff); Mrs. Henickekeeps that grocer man, Broadwell — he calls two or three times a day; she (meaning the plaintiff) thinks more of Broadwell than she does of her husband; Henicke (meaning the husband of the plaintiff) is a mere ornament which she keeps there for certain purposes; Broadwell remains in the house for hours when Henicke'(meaning the husband of the plaintiff) is away, alone with Mrs. Henicke’ (meaning the plaintiff), the defendant meaning by such false and malicious words, that the plaintiff was an unfaithful wife and an unchaste woman, and that she, the plaintiff, had been guilty of the crime of adultery. By means of the publishing of said false and malicious words the plaintiff is generally and greatly injured in her good name and reputation, and has been rendered liable to prosecution for adultery, to the damage of the plaintiff of $5,000.”
We think the court below erred in sustaining the demurrer. In Kansas, words charging adultery are actionable per se. Whatever may have been the rule at common law or in any other state, here, adultery is a crime punishable by imprisonment or fine, or both. (Comp. Laws 1879, p. 360, § 232.) Neither does it matter whether we accept the definition of slander laid down by Mr. Justice Spencer in Brooker v. Coffin, 5 Johns. 188, “that oral language is actionable per se, when it imputes a charge which, if true, will subject the party charged, to indictment for a crime involving moral turpitude, or subject him to an infamous punishment; ” or that laid down by Chief Justice Parker in Miller v. Parish, 8 Pick. 385, “that an accusation is actionable whenever an
We conclude, therefore, that this count in the petition is sufficient, that the court erred in sustaining a demurrer to it, .and hence that the ruling must be reversed, and the case remanded for further proceedings.