Griffin v. Moore

Robinson, J.,

delivered the opinion of the Court.

The appellants, plaintiffs below, sued the defendant, for slanderous words spoken by him, concerning the reputation for chastity of the plaintiff’s wife.

The declaration contains three counts. The first and third charges the defendant with saying publicly, in June, 1874, of the plaintiff’s wife, as she passed the defendant on the street, in the city of Baltimore, “ There goes that damned whore, Jack Dill, who ran away with my boy.”

The second count charges that the defendant, in the summer of 1872, sent a stranger to the house of the plaintiffs, saying to him at the time, that it was a “ house of ill-fame, and kept by a whore named Mrs. Burns.”

All the authorities agree in recognizing a distinction between words actionable per se, such as imply damage, and words not actionable unless special damage be proven ; but, the decisions in regard to the precise line which separates and distinguishes the one from the other are quite conflicting. While Courts have felt that the best interests of society require in many cases, that the slanderous words shall be considered as actionable per se, they have been careful to guard against encouraging an idle and vexatious spirit of litigation, by affording too great facility to this species of action.

Whatever may be the law elsewhere, it is well settled in this State, that in an action like the one now under consideration, in order to constitute words actionable per se, they must impute to the plaintiff, an indictable offence for which corporal punishment is the immediate penalty.

So early as the case of Stanfield vs. Boyer, 6 H. & J., 248, it was held, that in the absence of proof of special damage, words tending to charge an unmarried woman with fornication were not actionable, and so late as Wagaman vs. Byers, 17 Md., 183, this Court decided it was not actionable per se, to charge a married woman with adultery, because the penalty for adultery in this State was a pecuniary fine.

After the decision in Stanfield vs. Boyer, an Act of Assembly was passed, making all words spoken maliciously, touching the character or reputation for chastity of a fieme sole slanderous, but no Act has been passed in regard to words affecting the character and reputation of married women. It was urged, however, that it was more odious to call a married woman “a whore,” than to accuse her of adultery; but it is very clear that no language used in this connection, however foul, is actionable perse, unless it charges an offence which subjects the party to indictment and corporal punishment. In the absence then of proof of sjoecial damage, we are of opinion that the plaintiffs are not entitled to recover under the first and third counts in the declaration.

In regard to the second count, the charges of keeping a bawdy house, imputes an offence involving not only moral turpitude, but one' which subjects the party at common law to indictment and corporal punishment. Whatever may have been the earlier decisions,'it is now well settled in England, that it is actionable per se, to charge a person with keeping a bawdy house. Brayne vs. Cooper, 5 M. & W., 249; Huckle vs. Reynolds, 7 Com. Bench, N. S., 114, 8 Com. Bench, 142; Allsop vs. Allsop, 5 H. & N., 534; Perkins vs. Scott, 1 H. & Colt., 153.

This brings us to the question, as to the right of the defendant to plead in this case, the Statute of Limitations.

The second count in the declaration, charged the defendant with speaking of the plaintiff's house, “as a house of ill-fame, kept by a whore named Jack Dill.”

At the trial, the words proved were, “a house of ill-fame, kept by Mrs. Burns, a whore.” Thereupon, the plaintiffs asked leave of the Court, to amend the second count, by striking out the name of “ Jack Dill,” and inserting “Mrs. Burns.” The amendment was made, and after the plaintiffs had examined three witnesses, all of whom liad been cross-examined by the defendant, the latter asked and obtained leave to amend his pleadings, and to plead the Statute of Limitations.

(Decided 24th June, 1875.)

The plea of limitations is not a plea to the merits, and the universal practice in this State has been, never to permit. it to be amended nor to be filed after the rule day. Kunkel vs. Spooner, 9 Md., 473; Lamott vs. McLaughlin, 3 H. & McH., 324; Wall vs. Wall, 2 H. & G., 81; Nelson, vs. Bond, 1 Gill, 218.

Now, if it be conceded, that the amendment of the second count in the declaration was of such a character as to give the appellee the right to amend his pleadings and plead the Statute of Limitations, a question we are not to be understood as deciding, it is very clear that the plea was not filed in time. If the defendant had the right and intended to interpose this plea, it should have been filed immediately after the plaintiffs’ amendment of the second count. Having failed to do this, and having proceeded with the trial with the plea already in the case, he must be considered as- having waived the right to plead limitations, and it was too late to offer such a plea after the plaintiff's had examined their witnesses.

The judgment must therefore be reversed, and a new trial awarded.

Judgment reversed, and neiv trial aivarded.