McDaniel v. Jordan

Hart, J., (after stating the facts). Under our statute, if any person shall falsely utter words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken, shall be deemed slander, and shall be actionable as such. Crawford & Moses ’ Digest, § 2394. In the construction of this statute it has been held that an oral charge of unchastity in a woman is actionable per se. Jackson v. Williams, 92 Ark. 486. The instructions of the court on this phase of the case were correct. It is contended, however, that the court erred in telling the jury as a matter of law that it is actionable per se to utter the defamatory words which charged the plaintiff with being a liar, and in this contention we think counsel are correct. Under onr statute, oral charges of falsehood are not actionable per se, and can only be actionable by alleging some special damage which lias resulted to the plaintiff, as a consequence of the speaking of the.words, and the plaintiff’s chance of recovery depends upon his ability to prove the damage alleged. Studdard v. Trucks, 31 Ark. 726. In this connection it may be stated that it is actionable per se at common law to charge one with having committed a felony; and, under § 2395 of Crawford & Moses’ Digest, to charge one with having sworn falsely, whether spoken concerning a judicial proceeding or not. Stallings v. Whittaker, 55 Ark. 494. Counsel for the plaintiff defends the instruction on the ground that the complaint was amended so as to allege special damages, and .that special damages were proved by the plaintiff. This does not eliminate the prejudice which resulted to the defendant from the instruction. As we have already seen, oral charges of falsehood, are not actionable per se unless they charge a crime as provided in § 2395 of Crawford & Moses’ Digest, and the court erred in telling the jury as a matter of law that the words uttered in this respect were actionable per se. The instruction as given invaded the province of the jury by taking away from it the right to determine whether or not the words uttered were actionable. This necessarily resulted in prejudice to the defendant, and calls for a reversal of the judgment. In this connection it may also be stated that the court erred in telling the jury that it is not actionable under any circumstance merely to call a woman a “bitch.” The word “bitch,” although a coarse expression and a term of reproach when applied to’ a woman, does not necessarily import adultery, fornication, or want of chastity. 25 Cyc. 322; 17 R. C. L., § 23, p. 283; case-note to 24 L. R. A. (N. S.) at page 613; case-note to 15 Ann. Cas. at 1247; Craver v. Norton, 114 Iowa 46, 86 N. W. 54; Warren v. Ray, 155 Mich. 91, 118 N. W. 741; Jacobs v. Cater, 87 Minn. 448, 92 N. W. 397; Blake v. Smith, 19 R. I. 476, 34 Atl. 995; Robertson v. Edelstein, 104 Wis. 440, 80 N. W. 724; Logan v. Logan, 77 Ind. 558; Stoner v. Erisman, 206 Pa. St. 600; Craig v. Pyles (Ky.), 39 S. W. 33; and Peters v. Barth (Ky.), 50 S. W. 682. It appears from the cases cited above that one of the meanings given to the word “bitch,” as applied to a woman, is a lewd woman. The sense in which words are received and understood by the bystanders is the meaning which the courts ought to ascribe to them. In the present case there should have been proper introductory averments to show the connection in which the word “bitch” was used. Therefore, where words may have a doubtful or double meaning, the plaintiff must, by innuendo and colloquium, charge which meaning he attributes to them, and it will be for the jury to find whether they were spoken with that meaning or not. Other errors are assigned for a reversal of the judgment, but, inasmuch as they will not likely arise on a retrial of the case, we need not notice them. For the error in instructing the jury as indicated in the opinion the judgment must be reversed, and the cause will be remanded for a new trial.