Opinion
(December Term, 1843.)
1. The words "which amount to a charge of incontinency," and for which an action of slander is given to a woman by our act of 1808, Rev. Stat., ch. 110, must import not merely a lascivious disposition, but the criminal fact of adultery or fornication.
2. To say of a woman that "she was kept by a man" is actionable as a slander under our act of assembly.
3. He who repeats a slander without giving his author, or if he gives the author with a malicious intent, is himself liable to an action for the slander.
APPEAL from Dick, J., at special term in July, 1843, of RUTHERFORD.
J. G. Bynum and John H. Bryan for plaintiff.
W. J. Alexander for defendant.
Slander, in which the declaration alleged that the defendant had charged the plaintiff's wife with incontinence. Plea: Not (137) guilty. The first witness for the plaintiff proved that the defendant said he went to the plaintiff's house; that the plaintiff's wife asked him to go into a room to see some carpenter's work that had been done in the house; that she commenced sweeping the house; that he put his hand upon her and she rose up and kissed him; that the children came to the door, and she said, "Lord, what have I done?" He further remarked to the witness, "You may depend upon it she is such a woman." The counsel for the plaintiff then asked the witness what he understood the defendant to mean by the expression. "You may depend upon it she is such a woman." This question was objected to by the defendant's counsel, and his Honor rejected it and remarked that it was for the jury to determine what he meant.
Another witness proved that he had frequently heard the defendant say "She was a dirty, sluttish woman"; and while speaking of her, he remarked that "a person might put a saucer of molasses down to the children in one end of the house, and they might eat it up and come upon them before they expected it."
Another witness proved that there had been an indictment against the defendant for an assault and battery on the plaintiff's wife before the bringing of this action, and that the defendant, while speaking to the witness about that action, said, "The reason that the plaintiff had not summoned witnesses from the south side of the river to prove his wife's good character was that the general impression in that neighborhood was that he (the defendant) kept the plaintiff's wife."
His Honor being of opinion that the words as proved were not actionable, the plaintiff submitted to a nonsuit and appealed to the Supreme Court.
The statute of 1808, Rev. Stat., ch. 110, gives to a woman an action for words "which amount to a charge of (138) incontinency," which imports, we think, not merely the imputation of impure desires or a lascivious disposition, but the criminal fact of adultery or fornication. It has not pleased the Legislature to go farther, and perhaps it could not be safely done, though often the accusation of a propensity or the imputation of such conduct as only evinces propensity and nothing more may be as destructive to the reputation of a woman as the most explicit charge of personal prostitution. In the case before us, with every inclination to receive the words in the sense in which they were meant by the speaker, and were or would reasonably be understood by hearers, we cannot say that, as stated by the two first witnesses, they import a charge of the very act of adultery, but only evil thoughts in the heart which perhaps only waited for opportunity to break out into open lewdness. But one cannot be at a loss as to the sense in which the words proved by the last witness are to be received. It is to be remarked in the beginning that the defendant is liable upon these words as if he had directly affirmed the fact to be he says it was reported, inasmuch as he states the report or impression about the plaintiff's character as a general impression without disclosing the name of any person from whom he received it. Lord Northampton's case, 12 Rep., 32. And indeed if he had given the author, the repetition of this slander was so obviously malicious and for evil ends that upon the averment of those facts it might have been left to the jury to find for the plaintiff, unless the defendant proved the fact of her guilt with him. Hampton v. Wilson, 15 N.C. 468. Then the case is to be taken that defendant declared "he kept McBrayer's wife." The word "kept" has many significations, according to the subjects to which it is applied; but it is a common and well-established sense of it, when used in reference to connections between the sexes, to denote habitual and criminal carnal conversation amounting to cohabitation. Every one knows at once what is meant by the terms "kept mistress," or what is laid to the charge of a man who is said "to keep a mistress." It is not the (139) meritorious act of providing for or maintaining a virtuous lady in her innocence, but it is the vicious one of having a wanton at his command for carnal gratification — of keeping her for sensual uses. This seems to us the natural import of the words in themselves as the people in the country would universally understand them. But at all events, they are susceptible of that interpretation, and therefore ought to have been left to the jury to determine the sense in which they were meant by the speaker and in which the hearers understood them. Studdard v. Linville, 10 N.C. 474; Woolnoth v. Meadows, 5 East, 463. That the word "kept" was not here used with an intent of only saying that the defendant innocently provided for this woman, or had her in custody, or was exercising towards her any other benevolence or any proper control over her, is evident from the circumstances and colloquium. He was speaking of the trial of an indictment against him for an assault on this same person, and he gives as a reason why the husband did not prove her good character on that occasion, that it was the general impression that he kept his wife. The meaning is plainly that the husband could not prove his wife's good character because the defendant kept her, and therefore her character was not good, but bad; and in what sense bad, as meant by the defendant, no person can doubt. What else could the defendant mean, under such circumstances, but to charge a report — which is the same thing as the charge of the fact — that the feme plaintiff had been guilty of habitual adultery with the defendant himself? The obvious import of the words is defamatory, and under the attending circumstances they are so plainly pointed towards the charge of this particular offense that unless a judge is not to use his understanding like other people we cannot give them any other acceptation. They meant that or they meant nothing.
PER CURIAM. Reversed.
Cited: Johnston v. Lance, 29 N.C. 455; Lucas v. Nichols, 52 N.C. 35; S. v. Moody, 98 N.C. 672; McCall v. Sustair, 157 N.C. 182; S. v. Howard, 169 N.C. 313.
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