
    Barnett v. Ward.
    1. Words charging a woman with sleeping with a man not her husband, impute to her a want of chastity, and therefore are actionable per se.
    
    2. The fact that a woman hears a different name from a person with whom she is charged to have been intimate, tends to prove that she is not the latter’s wife.
    3. The defendant, in an action of slander, was charged with saying of the plaintiff that she slept with a man, not her husband. The proof showed the statement to be. that such person was in bed with her. Held, the want of correspondence between the allegation and proof ' raises amere question of variance, and is not a failure of proof within the meaning of section 133 of the code of civil procedure.
    Error to the District Court of Warren County.
    The action below was brought by Angeline Ward against James Barnett, upon a petition in the following words and figures :
    That the plaintiff, at the time of the committing by the said defendant of the grievances hereinafter named, was, and still is, an unmarried woman, and did then sustain a good name and character among her neighbors and acquaintances for virtue and chastity, and was never suspected of the crime of fornication. Yet the said defendant, well knowing the premises, and maliciously intending to injure the good name and character of the said plaintiff, and to cause it to be believed that she had been unchaste and guilty of fornication, on, to wit, October 20, a. d. 1873, at Warren county, Ohio, in a certain discourse which he there had, of and concerning the plaintiff, and in the presence and hearing of divers good people, falsely and maliciously spoke and published, of and concerning the said plaintiff, the false, scandalous and malicious words following:
    1. That is to say, “ She ” (meaning the plaintiff) “ slept with John Fox.”
    2. “Angline Ward ” (meaning the plaintiff) “was sleeping with John Fox” (meaning an unmarried man) “when her watch was stolen.”
    
      3. “ Fox ” (meaning an unmarried man, as aforesaid) “ said he was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”
    4. “She” (meaning the plaintiff) “was sleeping with John Fox ” (a man having that name) “ when her watch was stolen.”
    5. “ Angeline Ward ” (meaning the plaintiff) “ was sleeping with John Fox ” (meaning a man who had before that time stolen the plaintiff’s watch) “ when her watch was stolen.”
    6. “She” (meaning.the plaintiff) “was sleeping with Fox” (meaning a man by the name of John Fox) “the night her ” (the plaintiff’s) “ watch was stolen.”
    
      7. “ John Fox ” (meaning a man who had stolen plaintiff’s watch) “ was sleeping with Angeline ” (meaning the plaintiff) “ when her watch was stolen.”
    And by means of the speaking of said defamatory words the said plaintiff hath been greatly injured in her good name and character, to the damage of the plaintiff $10,000.
    To this the defendant demurred.
    First — For the reason that the words set forth did not import the crime of fornication.
    Second — Petition did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled, and the following answer was. filed by defendant.
    First — lie denies that he spoke the words in the petition set forth by plaintiff as spoken by him, and denies that he spoke either of the sets of words in the petition set forth, and charged in manner and form as therein set forth; and he denies any and all malice therein charged.
    Second — He denies that the plaintiff sustained damages or was injured, as in the petition set forth; and he denies each and every material allegation in said petition set forth.
    The case went to trial upon the following testimony:
    
      Lewis LIurst testified: That the defendant stated, in his hearing, the following words of and concerning the plaintiff: “ How in the devil did he come to get it without he had been sleeping with her 2”
    
      
      Ann Turney testified: Tliat tlie defendant stated in her hearing, “ That is how he came to find the watch; he was in bed with her.”
    
      Thomas Turney testified : That tlie defendant stated in his hearing, of and concerning the plaintiff, “ I said, ‘ liow did he ever think of going to look for the watch in the bed ?’ ITe said, ‘ he was in bed with her, and that is how he found the watch.’ A few days after defendant was at my house, and he said ‘ the way he (Fox) found the watch, he was in bed with her?”
    
      WilUam Buts testified: That defendant was going to Franklin and asked him to ride with him, and he (witness) got in defendant’s wagon, and defendant said: “ He had heard that tlie fellow was sleeping with her, and he wondered how he had got the watch.”
    And this being all the testimony offered by the plaintiff, she rested.
    And thereupon defendant, by his counsel, moved the court to arrest the testimony from the jury, and to direct a nonsuit, for the reason that the testimony of the plaintiff did not sustain the allegations in the petition, and because the words proved are not the words, nor the substance of the words, alleged in the petition. And the court sustained the motion, and the plaintiff excepted to the ruling of the court, and thereupon moved to amend her petition by alleging the words as proved by the witness Turney. And it appearing that the words so proven by Turney were spoken before the filing of the petition, and more than one year before said motion, the court overruled said motion to amend, and to which ruling the plaintiff excepted, and judgment was rendered for the defendant ; whereupon the plaintiff tendered her bill of exceptions, which was signed and sealed by the court, and contained the proceedings, evidence and rulings of the court, as herein above set forth.
    On petition in error the district court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. It is here sought to reverse the judgment of the district court.
    
      
      T. F. Thompson, for plaintiff in error:
    The words spoken were not actionable per se. Selwin, by A. J. Fish, 7 Am. ed. 1263 ; Towns. § 129, note 1, and §§ 312, 313, pp. 507, 508 ; Id. 181, § 142, and note 2; "Wright, 123.
    The proof does not support the allegation. Towns. 372, 373, 565, 566, §§ 371, 364, 365, 369; 1 Swan Pr. 555, note a; 3 Stephen Nisi, 2575, 2576; 2 Greenl. Ev. 455, § 414, 9 ed.; 2 Selwin, 1267; 3 Allen, 72.
    
      A. Q. MeBwrney and Durbi/n Wa/rd, for defendant in error:
    The variance was not material, and there was no necessity of any inducements. Code, §§ 124, 133 ; Wright, 123, 316, 653 ; 15 Ohio, 319; Townshend on Slander, 234; Id. §§ 308, 505, and note; 11 Ind. 156; Desmond v. Brown, 29 Iowa, 53 ; Townshend on Slander, §§ 36A-369 ; 1 Am. L. C. 146.
   Boynton, J.

It has long been the settled law of this state, that words lettered in the presence and hearing of others, imputing to a woman a want of chastity, are, in themselves, actionable. It being their immediate and direct tendency to exclude her from society, and to bring her into disgrace among those who may credit thq charge imputed, thereby producing an injury from which damage necessarily results, a presumption of damage is made to supply the place of actual proof. The plaintiff in error, not doubting the rule thus stated, claims, nevertheless, that the judgment of the district court ought to be reversed upon each of three grounds. First. That the charge laid in the petition does not impute a want of chastity to the defendant in error. Secondly. That it was not made to appear that she' was an unmarried woman; and lastly, that there is a fatal variance between the words laid and the proof received to sustain them. Both courts below were of the opinion that the facts stated in the petition constituted a cause of action, and in that opinion we fully concur. The plain and obvious import of the language, charging the defendant in error with sleeping with John Fox, dtu'ing the night her watch was stolen, was to impute to her illicit intercourse with Fox. No one could hear the language uttered without understanding from it that the person uttering it intended to charge that such intercourse had, in fact, taken place. As was said in Shields v. Cunningham, 1 Blackf. 86, a phraseology more indecent might have been used, but no set of words, however plain and explicit, would have conveyed the idea with more certainty. See Townshend on Slander, Libel, § 172; Guard v. Risk, 11 Ind. 156.

The objection that no testimony was offered, showing, or tending to show, that the plaintiff was an unmarried woman is equally untenable. It is quite immaterial whether she was married or single. It is only important to know that she was not the wife of Fox, and this presumptively appeared from the circumstance that she did not bear his name. If, in the face of this, presumption, and notwithstanding it, it was claimed that she was the wife of Fox, the burden was on the defendant below to establish the fact by proof.

It is finally objected, that there is a fatal variance between the words laid in the petition, and those proved to have been spoken.

If the validity of this objection were to be determined by the rules governing the practice before the adoption of the code, a more difficult question would perhaps arise. The rule at common law required the words to be proved substantially as laid. Numerous cases held, that the same meaning, in different words, would not support the charge. However this may have been under the former practice, the question arising under the objection here made is to be determined by the rules established by the code. Thomas Turney testified, that the defendant below stated in his hearing, of and concerning the plaintiff, that “ the way he, Fox, found the watch, he was in bed with her.”

"Without looking into other parts of the testimony, we think the variance between this language and the words alleged to have been spoken was not such as to justify the court in arresting the cáse from the jury, and in directing a nonsuit. The code provides, that no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense on the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as may be just. Code,'§ 131.

The court is not authorized, in view of this provision, to determine from hearing the testimony of the witnesses given at the trial, whether the variance is so far material as to have misled the defendant to his prejudice, unless the allegation to which the proof is directed is so far unproved in its general scope and meaning, as to amount to a failure of proof. Code, § 133. Where there is not such failure of proof, in order to invoke the action of the court, it must be shown, not only that the party has been misled to his prejudice, by the variance, but the respect in which he has been misled must also be made to appear to the satisfaction of tlic court.

The court then determines whether it will grant leave to amend or not. If lfeave is granted the trial proceeds, unless a continuance becomes necessary by reason of the amendment. In the present case, it not only was not shown that the defendant below was misled to his prejudice by the supposed variance, but, that he was so misled was not even suggested. Indeed, it is not easily seen how ho could have been misled by a variance so slight. The words proved, as well as those in which the charge was laid, imputed to the plaintiff below a want of chastity. The words proved were slightly variant from those alleged, but they were clearly of the same import and meaning. That the defendant below could have been misled by a difference in phraseology apparently so immaterial, is hardly to be believed.

At all events, in the' absence of any claim, or showing, that the defendant below was misled to his prejudice by the variance, the court was not authorized, to dismiss the action.

It follows, therefore, that there was no error in the judgment of reversal.

Judgment affirmed.  