Bedtkey v. Bedtkey

15 S.D. 310 | S.D. | 1902

FuuukR, J.

In this suit for slander, defamatory matter actionable per se is charged in the complaint as having been spoken by appellant of and concerning respondent, while the evidence admitted without objection shows that he spoke the words to her in. the presence and hearing of third persons familiar with the language employed. In the coarsest terms known to the densely illiterate, he accused her of being a common thief, an adulteress, and a prostitute of the most detestable character. If true, the imputations are such that respondent is guilty of several distinct crimes punishable by imprisonment in the penitentiary. It being well settled that proof of special damage is unnecessary where the complainant is charged with an offense for which he may be indicted and punished, the court very properly overruled appellant's motion to direct a verdict in his favor on the ground that respondent had failed to show injury by reason of the defamatory matter. While it is enough to obviate the necessity of proving special damages if the offense be a crime or misdemeanor involving moral turpitude, it was shown by the undisputed evidence in this case that respondent suffered injury in consequence of the words falsely spoken. Moreover, this evidence of injury to feelings having been admitted without objection, damages therefore are recoverable. Jackson v. Bell, 5 S. D. 257, 58 N. W. 671.

It is also urged, for the first time in this court, that a verdict should have been directed for appellant on account of the variance between the pleading and the proof; but the general rule consistent with such contention and the decisions cited in its support are not controlling in this state, or even influential, unless the adverse party has been actually misled to his prejudice, and the record contains no intimation that such is this case. Our statute abrogating the general rule that plaintiff must fail unless the allegations of his complaint and the proof correspond is as follows: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually so misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it shall be alleged that a party has been misled, the fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.” Comp. Laws, § 4934. In states having a similar statute it is held, in actions for slander, that a variance, in order to be material, must substantially mislead or prejudice the adverse party, which fact must be shown to the satisfaction of the court. Townsh. Sland. & L. § 363.

Appellant is the father-in-law of respondent, and on cross-examination she was asked if there was not at the time of the trial an action for divorce pending between herself and her husband; and the sustaining of an objection to this question on the ground that the same was not proper cross-examination is not reversible error. As the subject was in no maimer touched upon in the direct examination, and the question relates to nothing tending in the slightest degree to discredit plaintiff or disprove her cause of action, it was not only subject to the objection urged, but wholly immaterial to the issues presented by the pleadings. Surely it was within the sound discretion of the trial court to hold that the question was not within the authorized latitude of cross-examination. Holdridge v. Lee, 3 S. D. 134, 52 N. W. 265; Wendt v. Railway Co., 4 S. D. 476, 57 N. W. 226; Noyes v. Belding, 5 S. D. 603, 59 N. W. 1069; Bank v. Smith, 8 S. D. 101, 65 N. W. 439.

Counsel for respondent contends that certain affidavits used at the hearing of the motion for a new trial should not be considered in reviewing the order denying such motion, for the reason that these affidavits were neither certified nor attested as a part of the bill of exceptions, but section 5217 of the Compiled Laws renders this wholly unnecessary. In Bailey v. Scott, 1 S. D. 337, 47 N. W. 286, it was held that, “on an appeal from an order made upon affidavits or other written evidence, no bill of exceptions is necessary.”

• One of the grounds urged in support of a motion for a new trial is that the verdict was excessive,' and arrived at by resort to the determination of chance; but the juror whose affidavit was relied upon entirely to support the proposition, by two subsequent affidavits, wholly repudiates his former statements, and the record clearly shows that he was wrong in the first instance. So, in the absence of anything to the contrary, the presumption must prevail that an honest jury, by the exercise of unprejudiced judgment, reached a conclusion based upon evidence, which we find amply sufficient to justify its verdict for $1,000. As a matter of fact, the evidence, in support of the verdict and against the contention of counsel for appellant, is overwhelming.

Another point deemed worthy of brief notice is to the effect that appellant was misled by the failure of the complaint to disclose the exact place where the slanderous words were uttered, but this was never mentioned at the trial, and, upon the record presented, the court below was fully justified in concluding that the claim was without merit. As a general rule, the time of speaking slanderous words, and the place where such words are spoken, is immaterial; and, were we required to go to that extent, abundant authority could be found to sustain the proposition that, when time and place are alleged, proof that the slanderous words were spoken at a different time and place does not constitute a material variance. 13 Enc. Pl. & Prac., p. 60, and numerous cases contained in accompanying notes.

It is clearly shown that the evidence which appellant claims to be newly discovered might, by the exercise of reasonable diligence, have been produced at the trial, and the character of the same is such as to fully justify the court in declining to grant a new trial upon the ground of newly discovered evidence. Where a diligent party, when (called upon to meet the issues, finds himself .unable to do so, he may, upon good cause shown, obtain a continuance, but in this instance none was applied for. Applications for a new trial on the ground of surprise or newly discovered evidence are addressed to the sound discretion of the trial court, whose rulings should not be disturbed in the absence of an abuse of such discretion. Gaines v. White, 2 S. D. 410, 50 N. W. 901.

Manifestly there is no reversible error in the record, and the judgment appealed from is affirmed.