175 N.W. 618 | N.D. | 1919
Lead Opinion
This is an action for slander. The complaint alleges that the plaintiff was and is a married man, sustaining a good name and character among his neighbors and acquaintances for
The defendant interposed a demurrer to the complaint, and to each of the alleged causes of action therein stated on the ground that the facts alleged do not constitute cause of action. The demurrer was overruled, and defendant appeals.
Under our laws “slander is a false and unprivileged publication, other than libel, which:
“1. Charges any person with crime or with having been indicted, convicted or punished for crime.
“2. Imputes to him the present existence of an infectious, contagious or loathsome disease.
“3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualifications in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business, that has a natural tendency to lessen its profits.
“4. Imputes to him impotency of want of chastity; or,
“5. Which, by natural consequences, causes actual damage.” Comp. Laws 1913, § 4353.
It will be noted that our statute enlarges upon the common law, and makes oral statements which impute unchastity actionable. Our statute also provides: “In an action for libel or slander it shall not be
It is not necessary in order to constitute actionable slander that the words should amount to a direct charge of fornication, adultery, or unchastity; but it is sufficient if the words used are such as to impute unchastity, adultery, fornication, and were so understood by those who heard them. 17 R. C. L. p. 282; 25 Cyc. 319. It has been said: “There is no offense which can be conveyed in so many multiplied forms and figures as that of incontinence. The charge is seldom made, even by the most vulgar and obscene, in broad and coarse language.” Stroebel v. Whitney, 31 Minn. 384, 18 N. W. 98; Newell, Slander & Libel, 3d ed. p. 186. In ascertaining the meaning of the words constituting an alleged charge of unchastity, their context and the circumstances under which they were spoken must be considered. (17 R. C. L. p. 282.)
It is elementary that a demurrer admits the truth of all issuable, relevant, material facts well pleaded. 31 Cyc. 233; 6 Enc. Pl. & Pr. 334; 6 Standard Enc. Proc. 943. “It will only be sustained where the court can affirmatively say that the publication is incapable of any unreasonable construction which will render the words defamatory.” 35 Cyc. 468.
In this case the complaint alleges that the defendant said that the plaintiff and defendant’s wife went upstairs together, and that this did not look good to defendant, and that the persons to whom the statement was made understood therefrom that plaintiff and defendant’s wife went upstairs for the purpose of having sexual intercourse. We' are of the opinion that, in absence of explanation, reasonable men might and probably would draw this inference from the charge made. We do not, however, believe that the words, “He couldn’t do to other
It therefore follows that the demurrer should have been sustained as to this charge, but was properly overruled as to the other. The order appealed from is therefore modified accordingly. Neither party will recover costs on this appeal.
Concurrence in Part
(concurring in part and dissenting in part). I am of the opinion that demurrer should have been sustained to each charge or alleged causes of actions set forth in the complaint.