Rolland v. Batchelder

Lacy, J., delivered the opinion of the court. This was an action of trespass on the case for insulting-words under the statute. The defendant in error, on the 5th day of February, 1887, sent by his servant the following letter to the wife of his neighbor, living on the lot adjoining his own, in the city of Norfolk: “Norfolk, Sat., February 5, 1887. “Miss Cora: “ Yours received. Will meet you at post-office at 5 o’clock this P. M. for a short interview. If you are not there, then I will meet you at the corner of Brewer and Freemason street at half-past eight o’clock this P. M. If that is not convenient for you, I will be at my office to-morrow (Sunday) morning from 10 o’clock to 11. Either of the above places you can come with safety. “Yours, “B. M. Batchelder. “P. S. You have the advantage of me; I won’t know you, so you must make yourself known. “BY He directed his servant to deliver this note to the servant of Mr. Holland, who lived on the adjoining lot, and direct that it be given to Miss Cora, meaning Mrs. Cora Holland, the wife of T. J. Rolland. Mrs. Holland became indignant, and sent a message back threatening the sender of the note with her husband. Batchelder was arrested, and admitted sending the note, but sought to exculpate himself by the assertion that the note was not meant for Mrs. Holland. The arrest, however, had been effected by Mrs. Holland’s going to the appointed plaee, shadowed at her request by an officer, who arrested Batchelder in the act of making advances to her. The suit was instituted for $10,000 damages; when the testimony had been offered on the part of the plaintiff, the defendant offered none, but demurred to the evidence. At the trial, the court [672] excluded the letter set forth above, as evidence from the jury, because there was no sufficient publication of the same found, it not having been otherwise published than by sending it to the person to whom it was addressed. The court discharged the jury without allowing them to assess the damages in the case, subject to the judgment of the court upon the demurrer to the evidence. The court then rendered its judgment upon the demurrer to the evidence in favor of the defendant, whereupon the case was brought to this court by writ of error. The action is brought under the second section of chapter 145 of the Code of 1873, which provides that “all words which from their usual construction, and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. Ho demurrer shall preclude a jury from passing thereon.” Such words are actionable whether they be spoken words or written words. Chaffin v. Lynch, 83 Va., 106. That the words used are insulting words cannot be questioned; that they tend to violence and breach of the peace is equally clear. But it is argued that this lettér is not a libel, because it was not published by the defendant, and it was so held by the corporation court. If publication was necessary to constitute insulting words actionable, it is established in this case that the letter was written by the defendant, and giyen into the hands of one person, Haney, the servant, with money and directions to deliver it to Harriet, another person, and the servant of the plaintiff, with directions to deliver it to the wife of the plaintiff, T. J. Holland. The defendant thus parted with the letter, sent it forth, and the result of this carefully prepared train is that the contents became known. This might possibly be held to be a sufficient publication if such were required to render the words actionable. In the case of Miller v. Butler, 6 Cush., 71, a similar letter was sent through the mail, and this was held sufficient publication, although directed to and received by the person addressed. And Judge Tucker says, in his admirable work on the Laws of Virginia, [673] that writing a libelous letter to the person libelled is a publication, and is actionable. Tuck. Bl. Comm., bk. 3, p. 63. And while this is doubtless true, in the case of the State v. Avery, 7 Conn., 266, it is held punishable as an offense of a public nature, because it tends to create ill blood, and cause a disturbance of the public peace. But we do not think any publication is necessary under our statute cited above; that the words, according to their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, is sufficient to render them actionable. If they are so written or spoken as to tend to violence and breach of the peace, that is all the statute requires. If a libel is published, or a slander communicated to some third person, the action accrues. But whatever may have been the original object of the statute, about which we find some of the judges not entirely agreed, the intention of the law expressed therein is clearly to render all words which, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, actionable. Insulting words written to the person insulted, tend to violence and breach of the peace, whether exhibited to a third person or not, and such words, spoken to another without the presence of third persons, tend also to violence and breach of the peace. How, here is a letter written to the wife of a neighbor, one living upon an adjoining lot, artfully asserting that in response to an invitation contained in a letter from her (which is entirely false, no letter having been written by her) the writer is ready and proposes to meet her on the street corner after dark, or at a private interview in his place of business on the Sabbath day. This was an insulting proposal to a married woman, and, being written to a woman of unimpeached honor and virtue, it was a letter to her husband as well, as the first impulse of every such married woman would be, as was the first impulse of this married woman, to send her husband and lawful protector to punish the would-be seducer who had cast his lewd eyes [674] upon her across their dividing fence. If the intimation to the married woman that she had opened this correspondence, the object of which was to accomplish and conceal an adulterous intercourse with the writer, was other than such words as the statute contemplates, then the statute»is a vain thing. Such words are insulting, and certainly tend to violence and breach of the peace, within the meaning the statute. To render insulting words actionable, they need not be spoken in the presence of a third person, and, to render written words which are insulting actionable, it is not necessary that they should be published to the world. If they are such, and are so used as to tend to violence and breach of the peace, they are by the law made actionable, and such action must be tried by a jury, and must be heard upon its merits, for “ no demurrer shall preclude a jury from passiug thereon.” Such being our view of the law, it follows that ~we think the corporation court erred in excluding the insulting letter from the jury, and erred in compelling the plaintiff to join in the demurrer to the evidence, offered by the defendant, and erred in discharging the jury without allowing them to render a verdict in the cause. But as there has been no assessment of damages in the cause, this court cannot now render such judgment as the said corporation court should have rendered, but the judgment of that court will be reversed and annulled, and the cause will be remanded to the said corporation court for a new trial, to be had therein in accordance with the foregoing views. Judgment reversed.