180 Mass. 289 | Mass. | 1902
This is an action of tort brought by a married woman for calling her a dirty old whore. We repeat the qualifying adjectives as bearing on what we have" to say. At the trial the defendant asked for a ruling that a justification was made out by proof that before the words were spoken the plaintiff had committed adultery. The judge refused so to rule, but left it to the jury to decide in what sense the words were used
No special reference was made to the pleadings in the request or ruling, and so we lay on one side the fact that the justification pleaded followed the innuendo of the declaration, which went little or no further than to aver that the defendant charged the plaintiff with the crime of adultery. See Simmons v. Mitchell, 6 App. Cas. 156, 162; Haynes v. Clinton Printing Co. 169 Mass. 512, 515. Of course the judge was right in his instruction that the justification must be as broad as the charge. Apart from the pleadings, clearly the jury were at liberty to find that the words charged the commission of adultery on more than one occasion, and therefore the ruling requested was wrong.
But as a general rule the justification need be no broader than the charge in a legal sense, — than the actionable portion or significance of the words. It need not extend to the further abuse with which a sentence or word may be loaded, where the truth of the substance of the imputation has been made out. Morrison v. Harmer, 3 Bing. N. C. 759, 767. Edwards v. Bell, 1 Bing. 403, 409. The judge by suggesting that usually the epithet carried the notion of hire implied that if that meaning were found the justification must extend to that. There is no. doubt that the jury were warranted in finding that the epithet with its adjectives meant more and worse in a social sense than even repeated lapses from conjugal faith. But it would be rather a stretch to say, and it was not argued, that they could have found that any other crime was charged, for instance that of being a common night walker or a lewd, wanton and lascivious person in speech or behavior under Pub. Sts. c. 207, § 29. Therefore the question is suggested whether we are to confine the cause of action to so much of the charge as imports criminal conduct, or are to recognize as an element to be included in the
If we take the former view we follow to' its extreme results a tradition of the common law the reasons for which have disappeared, and which has been corrected in England and in some of our States by statute. Odgers, Libel and Slander, (3d eel.) 90. By the old law, apart from an allegation of special damage an action lay in the spiritual courts only, because the offence charged was dealt with only in the spiritual courts and it was said that therefore the spiritual courts alone could determine the truth of the charge. Y. B. 27 Hen. VIII. 14, pi. 4. Perhaps it would have been simpler to say that originally the whole jurisdiction was ecclesiastical and that it was retained by the church except in those instances where for special reasons the common law had encroached. In Coke’s time the state of the law seems to have been accounted for or justified by treating such charges as “brabling words.” Oxford v. Cross, 4 Rep. 18. But see Ogden v. Turner, 6 Mod. 104, 105 ; Graves v. Blanchet, 2 Salk. 696 ; Davis v. Sladden, 17 Oregon, 259, 262, 263. It has been suggested that the taking by the common law courts of a portion of the original ecclesiastical jurisdiction over slander started, from the fact that in the cases where the common law interfered, the matter charged was the subject of a common law writ and that the principal matter drew to it the accessory. In such cases the common law courts best could determine the truth of the charge. 6 Am. Law Rev. 593, 595, 603, 605. Of course at that stage the common law could not present a systematic scheme of liability but only examples of occasional interference which seemed merely arbitrary when the explanation was lost.
At the present day, when slander is fully domiciled in the common law as a tort and the only remedy recognized as a remedy must be found in the common law courts, it may be argued with some force that there should be an effort after consistency of theory and that the remedy for one of the greatest wrongs that can be done by words should not be distorted by the necessity of referring it to the liability to a small fine or imprisonment if the falsehood were true. The older law already has
Exceptions overruled.
