Libel and Slander. Practice, Civil. Pleading, Civil. In an action for slander an exception of the defendant to a refusal of the presiding judge to rule, that if the defendant spoke certain words which the defendant has testified that he spoke instead of those alleged in the declaration the plaintiff cannot recover for the words set forth in the declaration, is disposed of by a special finding of the jury that the defendant used the language set forth in the declaration, which makes the effect of the other words immaterial.
In an action for slander, if the defendant failed to demur to the declaration and went to trial on the issues raised by the pleadings, after a verdict for the plaintiff at the argument of an exception to the refusal of the presiding judge to rule that the plaintiff could not recover on the declaration, the defendant cannot take advantage of the point that the declaration does not set out a cause of action by reason of its failure to state sufficient circumstances to show the sense in which the words were spoken, and the only argument open to him is that upon all the evidence the words were spoken under such conditions as not to be slanderous.
In an action for slander the words "W. (meaning the plaintiff's husband) has sold half of his wife to L. hasn't he?" may be found under the circumstances in which they were used to have been spoken in such a sense as to amount to a charge of adultery, and the fact that the statement was put in the form of a question makes it none the less slanderous.
In an action purporting to be by a married woman for charging her with the crime of adultery by spoken words, whether after a verdict for the plaintiff the defendant at the argument of an exception to a refusal of the presiding judge to rule that the plaintiff could not recover can raise for the first time the question of the sufficiency of the proof as to the plaintiff being a married woman, quaere.
In an action purporting to be by a married woman for charging her with the crime of adultery by spoken words, in the absence of any evidence tending to show that the plaintiff was not married it is sufficient for her to show that she was reputed to be a married woman.
RUGG, J.
This is an action for slander. At the close of the evidence, the defendant requested rulings that the plaintiff could not recover upon the first and the third counts. He also asked for a specific ruling as to the effect of certain words which the defendant testified that he spoke instead of those alleged in the first count. By an answer to a question, the jury found that the defendant used the language set forth in the first count. On this ground the defendant's exception to his request for the specific ruling must be overruled.
The question presented by the other two requests is a very different one from that which would arise if the defendant had demurred. The defendant having failed to demur and having gone to trial upon the issues raised by the pleadings as they stood, it is not now open to him to raise the point that the first and third counts do not set out a good cause of action. Although the declaration may not set out a cause of action by reason of a failure to state sufficient circumstances to show the sense in which the words were spoken, this objection can be taken only on demurrer. After verdict, it is only open to the defendant to argue that upon all the evidence the words were spoken under such conditions as not to amount to the charge of a crime. Chace v. Sherman, 119 Mass. 387. Many of the cases cited by the defendant arose upon demurrers and are therefore of little weight upon the question now open for consideration.
Taking into account all the circumstances disclosed by the evidence, there was enough to warrant the jury in finding that the words were spoken in such a sense as to amount to a charge of adultery. It is of no consequence that the statement was put in the form of a question. Insidious and harmful insinuations may often be conveyed under the cover of an inquiry. If it is open to the defendant now to question the sufficiency of the proof as to the plaintiff being a married woman (Oulighan v. Butler, 189 Mass. 287), there was enough to warrant a finding that she was so reputed, and this, in the absence of any other evidence, was all that was required of the plaintiff. 1 Greenl. Ev. § 140.
Exceptions overruled.