Roby v. Murphy , 1888 Ill. App. LEXIS 545 ( 1888 )

Moran, J.

Several sets of. words are set out in the declaration as being false, scandalous, malicious and defamatory, and among others, in the second count, are the following: “She is a dirty bitch.” “She is a dirty slut.” “She is a dirty, lying slut.” “ She is a filthy, lying slut.” These words are laid without any colloquitom going to show that they were used and understood in a slanderous sense. They must therefore be taken in their common acceptation. The word “bitch,” when applied to a woman, does not in its common acceptance import fornication or adultery, and is not actionable per se. K. v. H., 20 Wis. 252; Schurich v. Kallman, 50 Ind. 336; Logan v. Logan, 77 Ind. 558.

The word “ slut,” according to Webster, means an untidy woman, a slattern, and also a female dog, the same as “bitch.” While such terms undoubtedly are coarse, vulgar and brutal when applied to a woman, they do not amount to a charge of crime or of want of chastity, and are not, therefore, in their common meaning, slanderous words.

The declaration then contained sets of words that were actionable, and also sets of words which were not slanderous or actionable as set out. The third instruction given by the court to the jury told them that it was not necessary, in order to entitle plaintiff to recover, that she should prove all the slanderous words alleged in the declaration. It is sufficient to prove substantially the words in some one or more of the statements of slanderous words contained in the declaration.

This was manifestly erroneous. What are slanderous words is a question of law, and the jury could not tell what were and what were not actionable -words, and in any event it was error to leave them to determine what were slanderous words. Carter v. Carter, 62 Ill. 439; Howard Fire Ins. Co. v. Cornick, 24 Ill. 455.

But the undoubted effect of the instruction was not to set the jury to determine what sets of words were slanderous, but to convey to them the impression that all the words stated in the declaration were slanderous, and the proof that the defendant had published any of them against plaintiff would justify a verdict of guilty.

For aught we can see the verdict may in fact rest upon a finding by the jury that the non-actionable words were the ones which defendant was guilty of using. There is, it is true, about the same proof as to one set of words as another, and practically the same conflict in the evidence as to the speaking of all the words alleged, but we can not determine that the verdict finds the speaking of the actionable words particularly in view of this instruction in which plaintiff deemed it prudent to have the jury told that they ought to find a verdict of guilty on proof of the speaking of any of the sets of words. It is not unlikely that the jury would more readily believe that the vulgar and opprobrious epithets had been used than the words imputing fornication or larceny. The graver charge usually requires clearer proof to establish it than the lesser offense.

The rule is that where there is manifest error which may have injured the defendant, there must be a reversal, unless from an inspection of the entire evidence, this court can say that the error did not affect the result.

"When there is no conflict in the evidence, or when from all the evidence we can see that the successful party is so clearly right that the same verdict must necessarily have been rendered had the jury been correctly instructed, the case will not be reversed for error in the instructions alone; but when the right is not clear and there is error in the instructions which may have misled the jury, there must be a reversal, that the issues may be determined under proper instructions. C., B. & Q. R. R. v. Van Patten, 74 Ill. 91; Howe Machine Co. v. Rosine, 87 Ill. 105; Beard v. Maxwell, 113 Ill. 440; Union Stock Yards Co. v. Managlian, 13 111. App. 148; Frantz v. Rose, 89 111. 590.

A careful inspection of the whole record does not satisfy ns that no injury was done to the appellant by the instruction pointed out. Taken in connection with two other instructions set out in the statement of facts, it was calculated to mislead, and it does not affirmatively appear that it did not have that effect.

For error indicated the judgment must be reversed and the cause remanded.

Reversed and remanded.