Millison v. Sutton

1 Ind. 508 | Ind. | 1849

Blackford, J. —

This was ail action of slander brought by Eliza Millison. The declaration contains two counts. General demurrer to the declaration, and judgment for the defendant.

The first count, by way of inducement, alleges that the plaintiff is an unmarried woman, and one of the sisters of Jesse Millison. The count then alleges, that the defendant, in presence of divers persons, spoke and published the following false, scandalous, and malicious words, addressed to Jesse Millison, of and concerning the plaintiff, namely, “ all the bravery you ever showed was in sleeping with your sisters,” (meaning the plaintiff); thereby meaning that said Jesse had been guilty of sexual intercourse with the plaintiff; and so the persons present understood the defendant to mean and insinuate.

We do not think that this count contains any cause of action. There are no extrinsic facts alleged, except that the plaintiff is unmarried, and is one of the sisters of Jesse Millison. We agree that there is nothing in the objection that the words were not imputed to the plaintiff specially, but to all the sisters of said Jesse. If, instead of the words “ your sisters,” the phrase had been “ one of your sisters,” there might have been reason for saying that the person intended was uncertain. But. the expression “ your sisters,” is free from that objection, as it includes them all. Gidney v. Blake, 11 Johns. 54. The words, however, though spoken of the plaintiff, are not of themselves actionable. To be so, they must convey the idea that the plaintiff had had sexqal intercourse with her brother Jesse; but we do not consider that to be their natural meaning. The conversation, as appears by the ironical words laid, was not as to such intercourse, but as to the cowardice of her brother and the defendant. It is true, that the words in question may have conveyed the meaning claimed for them by the plaintiff; but if so, it must have been owing to extrinsic facts to which the conversation in which the words were spoken had reference. There is no averment, however, of any such facts.

The second count states a certain other conversation between the defendant and said Jesse, in the hearing of divers persons, in which the said Jesse said to the defendant, “ all the bravery you ever showed was in whipping your wife.” In reply, the defendant spoke of and concerning said Jesse and the plaintiff these false, scandalous, and malicious words, namely, “ all the bravery you ever showed was in sleeping with your sisters,” (meaning the plaintiff). To the last remark, the said Jesse replied, “I say nothing but what I can prove;” and the defendant answered, “neither do I;” thereby meaning to insinuate and have it understood by said Jesse and the other persons present, that said Jesse had been guilty of sexual intercourse with the plaintiff, and that the defendant could prove it; and so said Jesse and said other persons understood the defendant.

One objection to the second count is, that there is no averment that the plaintiff is a sister of Jesse Millison. Without such an. averment, the words are not shown to be applicable to the plaintiff. But, independently of that objection, this count is not sustainable. It alleges the existence of no extrinsic facts. The object of each of the speakers was to show that the other was a coward. The words relied on in this count are similar to those laid in the other, and are not, of themselves, actionable. The words in question, especially when the whole conversation is considered, do not, according to their ordinary acceptation, mean that the plaintiff had had sexual intercourse with her brother; and no circumstances are alleged showing that the words were used in that sense.

D. D. Pratt, for the appellant. J. W. Wright, for the appellee.

We think the demurrer was correctly sustained.

Per Curiam. —

The judgment is affirmed with costs.