Opinion
No. 7972.
March 21, 1928. Rehearing Denied April 25, 1928.
Appeal from District Court, San Patricio County; T. M. Cox, Judge.
Suit by John Masse and wife against H. K. Boeckle. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Sidney P. Chandler, of Corpus Christi, and L. B Camp, of San Antonio, for appellant.
J. C. Russell, of Sinton, and E. B. Ward and S.E. Dyer, both of Corpus Christi, for appellees.
This is a suit for damages, instituted by appellees, alleged to have resulted from slanderous reports against the chastity of Mrs. Masse by appellant. The cause was tried by jury resulting in a verdict and judgment for appellees in the sum of $500.
The allegations were that appellant had circulated a report that Mrs. Masse was an unchaste woman, and had kept a house of ill fame in St. Louis before she came to Texas, and was keeping such a house in Ingleside, San Patricio county, where all the parties resided. The jury, in answer to special issues, found that appellant had imputed to Mrs. Masse, during the year 1924, a want of chastity, that on or about August 11, 1924, appellant made the statement to L. D. Crumly, imputing to Mrs. Masse a want of chastity. The jury awarded $500 actual damages and denied exemplary damages. In the amended petition it was stated that the only slanderous remarks, which it was alleged, were made to any one individual were made on or about September 11, 1924, a date which was three days after the original petition was filed. It was clearly a clerical error, and the court properly permitted the error to be cured by a trial amendment. Limitation of one year does not arise in the ease.
The only allegations as to slanderous remarks made and reports circulated by appellant were as follows:
"H. K. Boeckle, on various dates, during the year 1924, stated to various persons that the plaintiff Josephine Masse, who is the wife of the said John Masse, was a woman of ill repute, and that she was immoral, and kept prostitutes in her home for immoral purposes, and made various and sundry charges and statements to that effect, intended to and calculated to be applied to the said Josephine Masse, and in each instance, whether he mentioned her name or not, by innuendo and insinuation, by his similar statements and the statements as alleged, which were calculated to and did leave the impression that the said Josephine Masse was a woman of bad moral character and of ill repute; that in any event, on or about the 11th day of September, A.D. 1924, in San Patricio county, Tex., the said defendant, in conversation with a friend and acquaintance of the plaintiffs herein, made statements calculated to lead such person to believe that the said Josephine Masse was a woman of ill repute and of bad character, and he further stated that the Masses, and especially Josephine Masse, was not fit for decent people to associate with, and referred to the said Josephine Masse as the "old lady" Masse, or "old woman" Masse, meaning thereby that the plaintiff herein, Josephine Masse, was an immoral woman and that she kept prostitutes in her home, and was not fit for decent people to associate with, and words to that effect, and of the same import, calculated to, and intended to, impute to the plaintiff Josephine Masse a want of chastity."
The first part of the paragraph was attacked through a special exception on the ground that it was too general and did not place appellant upon notice as to the time and place when the slanderous words were uttered, nor to whom they were spoken. The exception was well taken, and should have been sustained, and the court erred in overruling it. Vacicek v. Trojack (Tex.Civ.App.) 226 S.W. 505.
Appellant also assailed the latter part of the paragraph of the petition herein copied because it did not name the person to whom the slanderous words were spoken, and in the case cited, in reversing the judgment, the court said:
"Upon another trial, if appellee desires to prove that such words were spoken to persons other than himself and Mrs. Peterson by defendants, he should amend his petition, naming such persons."
In this case a certain date is given on which the slanderous words were alleged to have been spoken "in conversation with a certain friend and acquaintance of the plaintiffs herein." The uncertainty of the allegation is apparent, and leaves the defendant at sea as to meeting the allegation. He might by inquiry locate a "friend and acquaintance" of appellees, and make preparation to show that he made no accusation to such "friend and acquaintance," and on the trial be confronted by another and different "friend and acquaintance" of appellees. Appellant should have been given the name of the person to whom it was alleged that he made such slanderous statement. Slander is the false and wanton imputation of a want of chastity to any female in this state, married or unmarried, and it is made an offense against the law, and punishable by a fine of not less than $100 nor more than $1,000, and in addition imprisonment in jail not exceeding one year may be given. Article 1293, Crim. Stats. (Pen. Code 1925). In order to fix such a grave offense on a defendant in a civil case in which damages are sought, the pleadings should be clear and explicit.
In cases of libel, the language used, being in writing, can and should be set forth in hæc verba, but the same rule cannot be made to apply to a case of slander where the slanderous words spoken are only lodged in the treacherous memories of witnesses. The imputation of a want of chastity is the basis of the action, and it cannot be made to depend upon allegation and proof of the exact language. The petition was full and clear enough as to the imputation of a want of chastity, but it was easy and practicable to allege the names of persons to whom the slanderous words were spoken, and it should have been done.
Testimony as to a criminal case for slander having been instituted and still being pending should not have been permitted to have been introduced before the jury. The case should have been tried upon the evidence as to the slander, and an indictment and trial for a criminal case arising out of the same facts should not have been permitted in the civil case.
For the errors discussed herein, the judgment is reversed, and the cause remanded.