Underhill v. Welton

Poland, J.

Words imputing unchaste conduct to an unmarried woman are not in this State actionable per se, because such conduct does not subject her to any criminal punishment. A charge of sexual connection with a married man, or a charge of unchaste conduct of a character that would amount to open and gross lewdness, would be actionable for the reason that either would subject her to corporal punishment for a crime involving moral turpitude.

In all those States where it has been held actionable to charge a single woman with a want of chastity, they have statutes against fornication, and these decisions have gone upon the ground that such charge, if true, rendered her liable to punishment under such statutes.

As we have no such statute, such actions cannot be here sustained except by alleging and proving that the plaintiff had sustained some special and pecmiiary loss or damage, from the speaking of the words by the defendant.

The defendant in the present case claims that the plaintiff’s declaration contains no such allegation of special damage as would authorize a recovery, and that no sufficient special damage was proved at the trial. The questions as to the sufficiency of the declaration, and the correctness of the charge to the jury, are substantially the same.

The plaintiff’s first count alleges as among the consequences of the speaking of the words set out in the declaration, that “she was subjected to great distress in feeling, loss of time, and otherwise greatly injured.-”

The second count, among other allegations of damages, says that thereby “the plaintiff was also prevented and disabled from pursuing and following her accustomed duties and labors with the strength and health that she otherwise would have enjoyed.”

The proof seems to have at least fully sustained all that either eount alleges as to damages resulting from loss of time and inability by the plaintiff to perform her ordinary domestic and household duties. We are of opinion that either of the counts sufficiently alleges a pecuniary damage resulting from the words-spoken by the defendant to sustain the action.

The allegation of loss of time in the first count, has always been regarded as a good allegation of pecuniary loss, and that it is stated in a very general manner is not a sufficient objection after verdict. In Bradt v. Towsley, 13 Wend. 253, which was a similar action to this, the allegation of damage was that the plaintiff “ had been hindered and prevented from attending to her necessary affairs and business,”

The allegation of damage in the plaintiff’s second count is very-similar. Instead of alleging a total inability to perform her ordinary labor and duties, it alleges a partial inability, that she was less able to perform them. We think the legal character and effect is the same. This case in Wendell is cited and approved in the subsequent case of Beach v. Ranney, 2 Hill 312, and we think is a sound and sensible decision. The last case which is cited and relied on by the defendant goes entirely on other grounds; that some of the damages alleged were not pecuniary ; that others were not the direct result of the words, but the wrongful acts of third persons ; and that the action for the recovery of such special and pecuniary damages must be brought by the husband alone, and not by husband and wife. All authorities agree that any pecuniary damage, however slight, is sufficient to sustain the action.

The judgment of the county court is affirmed.