
    Margaret Battles, appellant, v. Hagerman Tyson, appellee.
    Filed November 22, 1906.
    No. 14,500.
    1. Slander: Question fob Juey. Unless words upon which a charge oí slander is based are plain and unambiguous in their meaning, the meaning intended by the defendant and the understanding of those hearing him should be left for the jury to determine.
    
      2. -. To charge a woman with being a lewd character, of using her body for commercial purposes, and with keeping a gambling room is actionable per se.
    
    Appeal from the district court for Fillmore county: Leslie G-. Hurd, Judge.
    
      Reversed.
    
    
      F. B. Donisthorpe, for appellant.
    
      Ourtis é Waring, contra,.
    
   Dueeie, C.

The petition in this case alleges that the defendant, on or about August 21, 1904, in a conversation had with divers persons, falsely and maliciously spoke and published the following false and defamatory words of and concerning her: “I want it understood that I am not running a gambling house, and that if a girl could not have decent company she has no business to have company at all; that she had three men in her room with her.” It is further alleged that in the presence and hearing of other's the plaintiff falsely and maliciously did speak and publish the following false and defamatory words of and concerning the plaintiff: “She was locked up in her room with three men in my house, and after they had gone I found an empty whiskey bottle on her table.” It is further alleged by way of innuendo that the defendant, in so speaking of the plaintiff, intended, and that it was so understood by those hearing him, that t!m plaintiff was entertaining company which was not decent, and was running a gambling room in his house;' that she was a woman of immoral character, using her body for commercial purposes, and that she had three men in her room with her for that purpose; that she was a young woman of lewd character, permitting men to enter her room and lock the door for sexual intercourse, and that, she was in the habit of using intoxicating liquors. The defendant interposed a demurrer to this petition, which was sustained by tbe court, and tbe plaintiff electing to stand on ber petition, ber action was dismissed.

Tbe district court undoubtedly sustained tbe demurrer upon tbe theory that tbe words spoken did not charae a criminal offense, and, as tbe petition did not allege special damages suffered by tbe plaintiff on account of tbe alleged slander, that it did not state a cause of action. •The defendant, by demurring to tbe petition, admits speaking words as alleged. Whether they would bear tbe construction placed upon them in the petition, and whether those bearing them so understood them, is, we think, a question for tbe jury, and not for tbe court. It is true that no innuendo can give to plain and unambiguous words a meabing different from that in which they arc; generally understood, but in this case it does not require any far stretch of tbe imagination to accept tbe meaning contended for by tbe plaintiff in tbe use ‘of the words defendant admits be used in speaking of ber. As said by tbe supreme court of Minnesota in Stroebel v. Whitney, 31 Minn. 384, 18 N. W. 98: “It is going too far to argue that words must necessarily bear a criminal import, in order to render them actionable per se. It is not enough to show by ingenious argument that they might possibly admit of some other meaning. * * * It is not necessary that tbe words should make tbe charge in express terms. They are actionable if they consist of a statement of facts which would naturally and presumably be understood by tbe hearers as a charge of crime.” Newell, in bis work, Slander and Libel (2d ed.), cb. 7, sec. 5, says: “There is no offense which can be conveyed in so many multiplied forms and figures as that of incontinence. The charge is seldom made, even by the most vulgar and obscene, in broad and coarse language. If the language used is such that in its ordinary acceptation a person of ordinary understanding could not doubt its signification it will be prima facie sufficient.”

We have not had occasion to determine whether a charge of unchastity brought agajnst an unmarried woman is actionable per se. By the strict rules of the common law it was not; and special damages because of the charge had to be alleged and shown. That this rule was unsatisfactory to many courts is shown by the expression of the judges. In Lynch v. Knight, 9 H. L. Cas. 577, Lord Campbell said: “I may lament the unsatisfactory state of our law, according to which the imputation by words, however gross, on an occasion, however public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that jt has actually produced special temporal damages to her.” Lord Brougham, in a separate opinion, commenting on this statement, said: “Instead of the word ‘unsatisfactory’ I should substitute the word ‘barbarous. ”

In Smith v. Silence, 4 Ia. 321, the supreme court of Iowa, on examining the question, mentions a number of states, among which are North Carolina, South Carolina, Indiana, Illinois, Kentucky and Alabama, in Avhich the rule has been modified by statute; and other states, including Massachusetts, New Hampshire, Connecticut, Ohio and Pennsylvania, in which, by the decisions of their courts of last resort, it is now held that charging a woman, married or unmarried, with unchastity is actionable without proof of special damáges.

It may be admitted that,- if there was nothing else than the number of cases holding to the old common law rule, and if our action here had nothing else to influence or recommend it, we would be compelled to follow that rule; but as society is now constituted, a female against whom the want of chastity is established is driven beyond the reach of every courtesy and charity of life, and sometimes even beyond the portals of humanity. By common con‘sent such an imputation is now everywhere treated as the deepest insult and the vilest charge that could be given or inflicted upon the victim or her friends. She is denied the society in which she has been wont to move. If in want of employment, her character is gone, and her chance for self-support is injured beyond redress. In our judgment, such a charge is more damaging in its effect than many which are most severely punished by our penal laws. If, as alleged by the plaintiff, the defendant, by the words spoken of her, meant, and intended to mean, that she was offering her body for sexual intercourse, or was the keeper of a room where gambling was carried on, and this was the meaning understood by those to whom the words were spoken, they are actionable per se, and no special damages need be alleged or shown in order „0 sustain the action.

We recommend a reversal of the judgment and remanding the cause for trial.

Jackson, C., concurs.

By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the cause remanded for a new trial.

Reversed.  