Ross v. Fitch

Watts, J. Com. App. No indictable offense was imputed to Mrs. Fitch by the slanderous words charged to have been uttered and published by appellant of and concerning her. One of the essential elements of the offense of adultery, as defined by our criminal code, is that the parties must live together in a state of cohabitation. It cannot be deduced from the language imputed to appellant that he thereby charged that Mrs. Fitch and Marion Gilbert were or had been living together in a state of cohabitation. It is the recognized doctrine in this state, that ivords imputing a want of chastity to a female are not actionable per se, and special damages must be alleged as resulting therefrom. Any special damage, however slight, will suffice to sustain the action. McQueen v. Fulgham, 27 Tex., 463; Linney v. Matón, 13 Tex., 449. We do not think that the court erred in overruling appellant’s exceptions to the original and amended petitions. It was not necessary to give the names of the persons who had refused to employ appellees on account of the slander, or the names of those who had refused them polite and civil treatment, or the names of the boarders who left their boarding-house, or the names of those who refused to send their children to Mrs. Fitch’s school. As was said in H. & T. C. R. R. Co. v. Shafer, 54 Tex., 646, “ Conceding the rule of pleading applicable to the matter here involved to require with us, as it does at common law, that the facts which constitute the special damage shall be stated specifically and circumstantially, as held in Sutton v. Page and Wife, 4 Tex., 142, we are of opinion that the amended petition sufficiently conforms to it. The facts were not indefinitely stated, nor does there exist any uncertainty as to the cause of special damage complained of, nor the effect which it produced upon the plaintiff. It is neither necessary nor proper to set forth the evidence on which the pleader relies to sustain the facts which constitute his cause of action.” The charge asked by appellant and refused by the court was, in substance and effect, given in the charge of the court, and it was not necessary or proper that the same proposition should have been repeated in a separate charge. Considering the charge of the court in its application to the case [152] made by the pleading and evidence, it is a correct exposition of the principles of law to guide the jury in their determination. [Opinion approved December 5, 1882.] The use of the word “ injury,” in place of “ damage,” as found in the charge, could not have misled the jury. While the evidence, as shown by the record, is meager, considering the whole case, we are not able to say that the verdict is not sustained by the evidence. We conclude, and so report, that the judgment ought to be affirmed. Aeeibmed.