Francis H. (Francis Hermann) Bohlen.

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words were actionable. In the opinion, this court said: "Where
the charge is of an offence, it is usually said that it must involve
moraf turpitude and danger of punishment. This element of moral
turpitude is necessarily adaptive ; for it is itself defined by the state
of public morals, and thus far fits the action to be at all times ac-
commodated to the common sense of the community."

From this reference to a few of the cases, it is clear that when
]\Ir. Justice Churcit, in Gosling v. Morgan, 2,2 Pa. 273, said that
the undisturbed authority of the leading cases of Shaffer v. Kintzer,
I Binn. 537; McClnrg v. Ross, 5 Binn. 218, and Andres v. Koppen-
heafer, 3 S. & R. 255, establishes the principle, that words spoken
of a private person are only actionable when they contain a plain
imputation, not merely of some indictable oft'ence, but one of an in-
famous character or subject to an infamous and disgraceful punijli-
ment, the word "infamous" could not have been used in its technical,
but rather in its popular sense. The only crimes which work infamy
and consequent incompetency as a witness, are treason, felony, and
every species of the crime falsi, such as forgery, perjury, suborna-
tion of perjury, attaint of false verdict, and other offences of like



KLUMPH V. DUNN. 797

description, which involve the charge of falsehood and affect the
public administration of justice: Commomcealtk v. Shaver, 3 \\\
& S. 342; Schuylkill Co. v. Copley, 67 Pa. 390. The profession
would certainly be greatly surprised to learn that slanderous words
are, in Pennsylvania, actionable only when they impute a crime of
this class. Our books are full of cases to the contrary.

The English rule is spoken words, which impute that the plain-
tiff has been guilty of a crime punishable with imprisonment, are
actionable, without proof of special damages : Odger on Sland. & L.
54, and cases there cited. But, in the American cases, importance
is attached to the inherent nature of the indictable act, and also to
the punishment which the law assigns to it, upon the principle that
social degradation may result from either.

The plaintiff in this case was charged with burning his own mill,
to defraud the insurance companies. The oft'ence involves moral
turpitude ; it is of a base, and in a popular sense infamous character.
It is punishable by separate and solitary confinement at labor in the
penitentiary, for a period not exceeding seven years, which is a dis-
graceful punishment, inflicted on infamous offences. The words
alleged to have been spoken were therefore, without doubt, action-
able per se, and upon this ground.

The judgment is reversed, and a venire facias de novo awarded.



KLUIMPH V. DUXN.
Supreme Court of Pennsylvania, 1870. 66 Penna. 141.

October 17th, 1870. Before Thompso.x, C. ]., Read, Agnew,
Sharswood and Williams, J. J.

Error to the Court of Common Pleas of Crawford county, No.
144, to October and November Term 1868.

This was an action of slander brought June 28th, 1865, by James
L. Dunn against Lester R. Klumph.

The declaration was : —

"That whereas, he, the said James L. Dunn (a practising physi-
cian and married man), is a good, true, faithful and honest citizen
of Pennsylvania, and from the time of his nativity hitherto hath
been held, esteemed and reputed of good name, &c., and from
drunkenness, adultery and all other acts of a degrading character
free, &c. Nevertheless the aforesaid Lester R. Klumph not being
ignorant of the premises, but maliciously intending the said James
L. Dunn of his good name, &c., to deprive, and also the said James
L. Dunn unto danger of the laws against such oft'ences made, to
bring, on or about the day of June 1865, at the county afore-
said, these false, feigned and scandalous words following of and
concerning said James L. Dunn, in presence and hearing of divers
citizens of said Commonwealth, maliciously, falsely and unjustly

did say, speak and publish, to wit : 'That Dr. Dunn is

. He lay drunk all the time he was in the army ; had a



798 KLUMTII Z'. DUNN.

negro wench for his waiter and slept with her every night (mean-
ing thereby that he committed adukery with said negro wench),
and had one of his own townsmen put in the guard-house for speak-
ing to her. This he could prove.' "

The case was tried January 3d, 1868, before Johnson P. J. The
plaintiff gave evidence, by a number of witnesses, that in June
1866, at a store, in the presence of a number of bystanders, the
plaintiff not being present, the defendant used the words laid in the
declaration, accompanied with other gross and profane expressions ;
also that the plaintiff had been a surgeon in the army and continued
so during all the war of the rebellion. F. A. Temple, a witness for
plaintiff, on cross-examination said that he "took it for granted that
the conversation was about Sherman's march to the sea-coast." The
plaintiff gave evidence also that he had lived in Conneautville ten
years ; had four children, of whom three were daughters ; he was a
physician.

The defendant gave evidence that in his declarations he had said
that the conduct of the defendant of which he spoke was "while
he was with Sherman at Atlanta." He gave evidence also that the
words were spoken in an excited altercation which he had had with
Temple, one of plaintift''s witnesses, in which Temple mentioned
the plaintiff as authority to establish something which witness had
stated, and that defendant said that he had been told what he stated
by a soldier.

The defendant's points and the judge's answers were: —

"i. All the words laid in the narr, are not actionable.

"2. If they were spoken of the plaintiff' with reference to his
acts while in the South, or outside of Pennsylvania, it must be shown
that they were there criminal, and in violation of law, and unless
so shown the plaintiff cannot recover."

"Answers: i. We have no hesitation in saying that the words
are actionable.

"2. That if the evidence had shown that the crime alluded to
had been charged to have been committed in a particular place, and
it had been proven that the alleged offence was not a crime indict-
able as such at that place, we think the charge would not, per se, be
actionable here where uttered ; but this question does not legitimately
arise, because no venue is given, either in the narr or in the evi-
dence, to the crime imputed."

The verdict was for plaintiff for $700.

The defendant took a writ of error, and assigned for error the
answers to his points and that part of the charge given above.

SriARSWooD, J. — It is not necessary that all the words laid in
the declaration should be actionable. It is sufficient if some of them
are. The court below, therefore, were not required either to affirm
or deny the defendant's first point as presented : "that all the words
charged were not actionable." They answer correctly that the words
laid were actionable without saying whether all were. It is true
that a general judgment in slander, where some of the counts set
out words which are actionable, is erroneous ; but non sequitur that



KLUMPII Z'. DUNN, ^^99



^9S



a count in which non-actioiialjle words are laid with those ^Wch
are actionable is therefore bad. All the words spoken at the time
may properly be stated and given in evidence ; for they explain and
show the animus of the principal charge.

The court below may have erred in their answer to the defend-
ant's second point, in saying that the question whether the words
would be actionable if the offence was charged to have been com-
mitted in another state without showing that it would be criminal
there, did not arise, because no venue was given either in the narr
or in the evidence to the crime imputed : and also in the charge that
the evidence did not show where the offence was stated to have been
committed. These form the second and third errors assigned.^ It
must be conceded that there was evidence from which the jury
might legitimately have inferred that the conversation to which the
defendant's witnesses had testified was the same conversation as
that referred to by the plaintiff's witnesses, and that taking the whole
together the defendant meant to confine his accusation to what had
occurred in the South while the plaintiff was with Sherman at At-
lanta, or from Atlanta to Savannah. Even Temple, the witness of
the plaintiff, testified on his cross-examination that he took it for
granted that the conversation was about Sherman's march to the
sea-coast. If this was a ma^rial question in the cause it was for
the jury to decide, and it was error in the court to withhold it from
them. But if it was immaterial it did the defendant no injury._ The
court, as often happens, gave a wrong reason for a right decision.

The case of Barclay v. Thompson, 2 Penna. R. 148, decides
that an action will not lie for words spoken in another state when
the offence charged is not indictable in that state, although it may
be indictable here. To the same effect are Stout v. Wood, i Black-
ford 71; Offnt V. Earlyzvine, 4 Id. 460; Linville v. Earlyxvine, Id.
469; Langdon v. Young, 33 Vt. 126. The reason is a very plain one.
The defendant committed no legal wrong where the words were
spoken. No action lay there, and therefore not in any other state
in wdiich the defendant might afterwards be found and sued. In
this case, however, the words were spoken in this state. It
has often been held that where the words imputed a common-law
offence to have been committed in another state it need not be
affirmatively proved that such offence is indictable there. The pre-
sumption is, that the common law of a sister state is similar to our
own, and in one case it is intimated, though not decided, that if the
offence charged derives its quality as a crime from the statute alone,
the rule would be otherwise: Johnson v. Dickens, 25 Miss. 580;
Van Ankin v. Wcstfall, 14 Johns. 233; Poe v. Green, 3 Sneed 664;
Montgomery v. Dealey. 3 Wis. 709. But after a careful search, I
find no case which directly holds that words charging an offence
of moral turpitude, and indictable by the statute law of the country
where they are uttered, are not actionable per se, because they state
the offence to have been committed in another country. The opin-
ions in some of the cases cited seem to rely upon the liability of the
defendant to extradition under the Constitution of the United



5ta^, or



KLUMPH V. DUNN.



St^^, or treaties with foreign' states. But that surely is not the
true ratio decidendi. Nothing seems to be better settled than that
liability to prosecution or punishment is not the criterion. Both an-
cient and modern cases agree in this.

In Carpenter v. Tarrant, Ridg. temp. Hardw. 339, the words
were : "Robert Carpenter was in AVinchester gaol and tried for his
life and would have been hanged had it not been for Leggat, for
breaking open the granary of Farmer A. and stealing his bacon."
Here the words necessarily imported that the plaintiff had been tried
and acquitted, and therefore could never be convicted of the same
oft"ence. In Gainford v. Tiike, Cro. Jac. 536. the words were:
"Thou wast in Launceston gaol for coining." The plaintiff replied:
"If I was there, I answered it well." "Yea," said the defendant,
"you were burnt in the hand for it." Here the words clearly meant
that the plaintiff had been tried, convicted, pleaded his clergy and
been burnt in the hand, and of course could not be again punished
for the same offence. So, in Baston v. Tatliam, Cro. Jac. 622, it
was held to be no defence to prove that the offence charged was
within the terms of a general pardon, for the court remarked that
although the pardon might discharge of punishment, yet the scandal
of the offence remained.^ It may be said that in these cases there
was liability to indictment on the charge, though the plaintiff by
pleading could prevent conviction and punishment. It is to be re-
marked, however, that in all of them the slander carried its anti-
dote with it as far as risk of indictment was concerned. They are
distinguishable in this respect from that class of decisions where the
corpus delicto is shown never to have existed ; as where the words
were "you have killed Bob Waters ; you have poisoned him, and I
can prove it," and it appeared by the plaintiff's witnesses that at the
time when the words were spoken. Bob Waters was alive in a dis-
tant part of the country: Eckert v. Wilson, 10 S. & R. 44; Deford
V. Miller, 3 Penn. R. 103; Colbert v. Caldzvell, 3 Grant 181. There
are other cases, however, in which there could be no pretence of risk
of prosecution. In Fowler v. Dowdney, 2 INIoo. & R. 119, Lord
Denman rules these words to be actionable : "He is a returned con-
vict," as importing that the punishment had been suffered, but the
infamy remained. There was here no charge that the plaintiff had
been guilty of any particular offence, so that it could not be said
that he ran any risk in consequence of the slander of being subjected
to another prosecution. Such was the determination of this court
in Smith v. Stewart, 5 Barr 372, in which the words were : "that
man was in the penitentiary of Ohio." Here there was neither lia-



' Accord: Shipp v. McCraw, 7 N. Car. 463 (N. Car. 1819). So an action
lies for charging a crime barred from prosecution by the statute of limita-
tions, Webh v. Fitch, 1 Root 544 (Conn. 1793) ; Van Ankin v. West fa! I, 14
Johns. 233 (N. Y. 1817). or an act made a crime by a statute since repealed,
French v. Creath, 1 111. (Breese) 12 (1820). or where forany reason, such as
tender years, the person charged could not be held criminally responsible
for it. Stewart v. Howe, 17 111. 71 (1855), aliter where the charge is of com-
mitting a penitentiary offense while insane, Abrams v. Smith, 8 Blackf. 95
(Ind. 1846).



KLL'MPH r. DUNN. 8oi

bility to punishment nor prosecution ji^rowinj^ out of the charge,
which was that tlie plaintiff had commilled some crime for which
he had already been punished in the penitentiary ; yet the words
were held to be actionable per se."

What then is the criterion? Air. Starkie, after an elaborate re-
view of the cases, comes to the conclusion that as it is necessary to
have some clear and certain rule by which the line of demarcation
between actionable and non-actionable words can be drawn, none
could be adopted more convenient than that wliich refers the ques-
tion to the criminal law, and confirms the action to imputations of
offences of moral turpitude, punishable in the temporal courts : i
Starkie on Slander 27.

But to what law are the courts to refer to ascertain whether the
offence charged is of this character? Upon every principle of rea-
son and policy the answer seems to be the law of the country where
the words are spoken. That law is the exponent of the moral sense
of that community — of the estimation in which they hold offences
against the moral law, and words which accuse a man of crime,
condemned and subjected to infamous punishment by that law, ex-
pose him in that community to obloquy and contempt. The moral
character of the act cannot be aft'ected by the place where it is com-
mitted. What matters it to those to whom the words are addressed,
or in whose hearing they are spoken, that the crime is charged to
have been committed in a state or country where such actions are
not subject to punishment? Even if they are to be presumed to
know that the act was not a crime punishable by the law of the
country where it was alleged to have been committed, would it any
the less injure the moral character and standing of the party
charged? Is it possible that a man living in Pennsylvania can be
accused of having committed the crime inter Christianos non nomi-
nandum upon some uninhal)itcd coast or island where there is no
government and no law, or among some barbarous people where
such practices may be, as they have been, tolerated?; Is such a plain-
tiff* to be turned out of court unless he can prove some special dam-
age ? This may be an extreme case, but nevertheless it tests the
principle. If the criminal code laid its heavy hand upon such ca-
lumniators, there might be some good reason for requiring special
damage to be shown in all actions of slander, but we know that it
does not, and unless the lash is placed in the hands of the injured
party they must go "unwhippcd of injustice."

If the evidence of the plaintiff's witnesses was to be believed,
the defendant below charged him in a public store, in the presence
of many persons in the grossest terms with open and continueil
criminal connection with a negro wench, and asserted v/ith an oath
that he could prove it. By the laws of Pennsylvania, from 1705
to the present time, adultery has always been an indictable offence,
and of its moral turpitude there can be no question. The plaintiff



'.■iccord: Krehs v. Oliver. 12 Gray 239 (Mass. 1858^- U'Ucm v. Ccitnp-
bell, 5 T. B. Mon. 396 (Ky. 1827).



802 BRUCE V. SOULE.

was a married man — the defendant knew him to be so, and meant
to charge him with this offence, and in language which was designed
to convey his own sense of its detestable character, especially no
doubt in view of tlie race and color of the party who was alleged to
have been a partaker in the crime. We are of the opinion that the
words were actionable per se, whether they were limited to the state
of Georgia or were general ; and that the plaintiff" in error has no
just ground of complaint with the answer and charge of the court
below in this respect.

The 4th error assigned remains to be noticed. It is true, as
decided in Chubb v. Gscll, 10 Casey 115, that in an action of slander
the plaintiff cannot introduce evidence as to his good character until
it has been attacked by the defendant ; for tmtil then the law pre-
sumes it to be good, and the defendant admits it. Surely the jury
may weigh the fact that the character and standing of the plaintiff
is unimpeached in estimating the damages. But the court told the
jury that they might also take into consideration that the plaintiff
was a practising physician, although the declaration did not allege
his professional character as an inducement, nor charge that the
damage resulted to it. The position in life and the family of the
plaintiff" are always important circumstances as bearing upon the
question of damages, and have always been held to be admissible in
evidence for that purpose : Beehler v. Steevcr, 2 Whart. 313. It was
not necessary that they should be specially laid as the ground of
recovery in the declaration. Evidence of these particulars was
given without objection, and it would have been error to have in-
structed the jury that they ought to disregard them.

Judgment affirmed.^



(b) Words imputing certain diseases.
BRUCE V. SOULE.

Supreme Court of Maine, 1879. 69 Maine 562.

LiBBEY, J. An action will lie, without proof of special damage,
for speaking words charging the plaintiff with having a loathsome
or contagious disease, the effect of which imputation, if believed,
would be to exclude him from society. Stark. Slan. 97. Chaddock
V. BriggSj 13 Mass. 248. Joannes v. Burt, 6 Allen 236.^



a



'Accord: Wimberly v. Metcalf, 10 Ky. L. 353 (1888), charge made in
Kentucky that plaintiff had two wives, one in Missouri and one in Arkansas.
Contra Bundy v. Hart, 46 Mo. 460 (1870).

^ Brook v. Wise, Cro. Eliz. 878 (1601) ; Davies v. Taylor, ib. 648 (1598) ;
Garford v. Clerk, 44 ib. 857 (1601), all accusations of pox or syphilis; Taylor
V. Perkins, Cro. Jac. 144 (1607), leprosy; Bloodworth v. Gray, 7 M. & G.
334 (1844), pox; Watson v. McCarthy. 2 Ga. (2 Kelly) 57 (1847). gonorrhea:
Nichols V. Guy, 2 Ind. (2 Cart.) 82 (1850), semble, gonorrhea; McDonald v
Nugent, 122 Iowa 651 (1904), syphilis; Golderman v. Stearns, 7 Gray 181



LUMBV V. ALLDAY. 803

"The ground of the action being the presumption of the plain-
tiff's exckision from society, no action will lie f(jr an imputation in
the past tense, since such an assertion does not represent the plaintiff,
at the time of speaking, as unfit for society, and therefore the sub-
stance of the action is wanting." Stark, Slan. 98. Carslake v.
Maplcdoram, 2 T. R. 473.

In the declaration the words alleged to have been spoken by
the defendant, without the innuendoes, are as follows : "He has not
been able to do any work for the last three or four years ; that he was
about dead with the bad disorder, and that his wife died with it."
These words are included in quotation marks, and are set out as the
precise words spoken by the defendant. They do not charge the
plaintiff with having the "bad disorder" at the time of speaking,
but that "he was," in the past tense, about dead with it. We think
they are not, therefore, actionable. -



(c) Words injurious to the plaintiff's reputation in his trade,
business, profession or office.

LUMBY V. ALLDAY.
Court of Exchequer, 1831. 1 Crompton & Jervis Reports, 301.

Bayley, E. This case came before the Court upon a rule nisi
to enter a nonsuit. The ground of motion was, that the words
(in slander) proved upon the trial were not actionable.

Two points w^ere discussed upon the motion : one, whether the
w^ords were actionable or not — and the other, whether this was
properly a ground of nonsuit.^

The declaration stated that the plaintiff w^as clerk to an incor-
porated company, called the Birmingham and Staffordshire Gas



(73 Mass. 1856). venereal disease, kind not specified; Kaucher v. Blitiu,
29 Ohio St. 62 (1875). same; Williams v. Holdrcdge, 22 Barb. 396 (N. Y.
1854), gonorrhea; He-mit v. Mason, 24 How. Pr. 366 (1863), pox; Upton
v. Upton. 51 Hun 184 (N. Y. 1889), "bad disease"; Irons v. Field, 9 R. L
216 (1869), pox.

In Waikins v. Hall, L. R. 3 Q. B. .''96 (1868), p. 399, Blackburn. J., ex-
presses the opinion that the spoken accusation of any contagious disease is
actionable, but in Villers v. Monslcy, 2 Wils. 403 (1769), Gould. J., says that
such an accusation of the itch is not per se actionable, Bathurst, J., dub.
In "George, the Count Joannes" v. Burt, 6 .\llen 336 (Mass. 1863), the oral im-
putation of insanity is held not to be actionable per se.

' Taxlor v. Hall, 2 Strange 1189 (1743) ; Nichols v. Guv. 2 Tnd. (2 Cart.)
82 (1850); Pike v. Van Warmer, 5 How. Pr. 171 (1857); Irons v. Field.
9R. I. 216 (1869).

^ A part of the opinion is omitted hoklina: that, as a matter of pleading,
the proper mode to bring the legal effect of the facts stated \n the declara-
tion is, before trial, to demur; after trial, to move in arrest of judgment and
not after issue joined and trial thereon, to move for a rule to enter a non-
suit. The parties, however, acquiesced in the judgment of the Court and
the matter ended.



804 LUMBY V. ALLDAY.

Light Companj', and had behaved himself as such with great pro-
priety, and thereby acquired and was daily acquiring great gains ;
but that the defendant, to cause it to be believed that he was unfit
to hold his situation, and an improper person to be employed by
the company, and to cause him to be deprived of his situation, spoke
the words complained of in the declaration, viz.: "You are a fellow,
a disgrace to the town, unfit to hold your situation, for your conduct
with whores."

The objection to maintaining an action upon these words is,
that it is only on the ground of the plaintiff being clerk to the com-
pany that they can be actionable ; that it is not alleged that they are
spoken of him in reference to his character or conduct as clerk; that
they do not, from their tenor, import that they were spoken with
any such reference ; that they do not impute to him the want of any
qualification such as clerk ought to have, or any misconduct which
would make him unfit to discharge faithfully and correctly all the
duties of such a clerk.

The plaintiff relied on the rule laid down by De Grey, C. J.,
in Onslow v. Home, 3 Wils. 186, "that words are actionable when
spoken of one in an office of profit, which may probably occasion
the loss of his office ; or when spoken of persons tof clltng^ their re-
spective professions, trades and business, and do or may probably
tend to their damage."- The same case occurs in Sir Wm. Bla.
Rep. 753, and there the rule is expressed to be, "if the words be of
probable ill consequence to a person in a trade or profession, or an
office."

The objection to the rule, as expressed in both reports, appears
to me to be, that the words "probably" and "probable" are too in-
definite and loose, and unless they are considered as equivalent to