Cleveland v. Detweiler

Dillon, J.

1. Slander: woeds actionable. I. It is the law in this State, as shown by a long series of decisions, that words imputing to a female a want of chastity are actionable per se. This is an innovation upon the common law, an 1 was so regarded when the doctrine was declared. The earliest case was Cox v. Bunker, Morris, 269, decided by the Territorial Supreme Court, as early as 1844. Ten years after-wards, the same doctrine was declared in Dailey v. Reynolds, 4 G. Greene, 354 (1854). In 1856, the correctness of these cases came under review in Abrams v. Foshee, 3 Iowa, 274; and they were approved, and such a charge against a female declared, arguendo, to be actionable per se, “ on the broad, plain ground that it would immediately and necessarily tend to hinder her advancement in life.” “ Such a case,” observes Wright, Ch. J., “is an exception to the general rule, and is sustained by reasons that apply to it alone, because of the peculiar character of the charge, and beyond it we are not willing to go at present.” Afterwards, in the same year (1856), Smith v. Silence, 4 Iowa, 321, was decided, and the three cases above cited expressly approved. In 1857, in the case of Truman v. Taylor, 4 Iowa, 424, it was again adjudged, that a charge of a want of chastity in a female was actionable without proof of special damages.

The state of the law in Iowa on-this subject, and the ground of the decision are thus stated: “ Our conclusion that the words spoken are actionable jper se is not upon the ground that they import a charge of some punishable offense or crime, but upon the simple, and as we think, salutary ground, that words imputing to a female a want of chastity, are actionable without any proof of special damages. However, much other and perhaps, a majority of the States may have hesitated in adopting this rule, in ours at least, it may now he regarded as settled.” (S. P., Wilson v. Beighler, Id., 427. The same ruling was made in the recent case (April, 1864), of Beardsley v. Bridgman, 17 Iowa, 290.

We agree with the counsel for appellant, .that in the first case and perhaps in the first two cases, the same conclusion might have been reached upon the ground that the words imputed a punishable offense. But they were not put upon that ground alone, and the doctrine has been made to rest upon the broader grounds above stated. .

The exact and critical review of the case in the lucid and forcible printed argument of the appellant’s counsel, has induced us to reexamine with care the decisions in this State in order to ascertain whether the question could, as maintained by the defendant’s attorney, justly be regarded as an open one. We unite in the opinion that it is to be considered as definitely settled, and of course binding, upon “ the court as now constituted.” The tribunal is the same, though the members may change. Regarding the doctrine as settled, we do not deem it expedient to enter upon a vindication of its reasonableness. It might not be difficult, however, to show the injustice and absurdity of the common law rule, which, to the extent above shown, has been superseded in this State, by which to charge a female with stealing a pincushion would be actionable per se, while to charge her with a specific act of unchastity or bestiality would not be thus actionable. However we might decide were the question res integra, we are unwilling to overturn a long and settled, and so far as our knowledge of professional sentiment extends, a very generally satisfactory course of decision.

Sodomy is not made a crime by statute, and is not criminally punishable in this State. (Estes v. Carter, 10 Iowa, 400.) The case last cited was brought by the plaintiff (a man), for charging him. with sodomy. The case decides the point above stated. The point decided in the case at bar is not discussed in the opinion in that case. We express no opinion in this case whether the rule is different where a.want of chastity is imputed to a woman, and where it is imputed to a man. Such a difference we may observe, in passing, is recognized in Ohio. (Wilson v. Robbins, Wright’s Ohio Rep., 40.)

The doctrine in this State has thus far been extended to females only for the peculiar reasons stated. We leave the law in this respect just as we find it. (See on this subject generally, 1 Hilliard on Torts, 284, and authorities there cited and digested).

2. - sodomy. II. The defendant’s counsel next insist that, although it be true that words imputing to a female a want of chastity are actionable per se, still the words for which the presen(; action is* brought (see statement) do not impute to the plaintiff a want of chastity.

The position is, that, to be unchaste, implies actual, unlawful commerce with the other sex; and no other act, however immodest or vulgar, will, in legal contemplation, render her unchaste; and Bouvier and Webster’s definitions of chastity are quoted.

We would not like to decide that a female, guilty of the charge imputed in the case at bar, was chaste. The charge involves unchastity of the highest, grossest and most flagrant character. An ordinary accusation of unchastily is mild and gentle, as compared with the one for which this action is brought. We must abandon the rule, or else hold that it extends to such a case as the one before us.

Judgment affirmed.