87 Kan. 97 | Kan. | 1912
The opinion of the court was delivered by
Ethel Garvin, in four causes of action, sued her father-in-law for $500 damages for assault and battery, $3000 for stating that she had stolen a contract, $3000 for stating that she had stolen a shirt, handkerchief and socks, and $3000 for stating that she had stolen his shirt, all of which wrongs were said to have been committed on the 4th of July, 1909. Before the case was submitted to the jury she dismissed the fourth cause of action. The jury found for her on each of the other three, awarding her $500 on the first, $2000 on the second, and $1500 on the third, making $4000. The defendant appeals and assigns twenty-nine alleged errors in the rulings of the trial court.
Complaint is made of an instruction that it was only necessary for the plaintiff to prove enough of the words charged to amount to a charge of larceny to entitle her to recover. The allegation was simply that the defendant accused the plaintiff of stealing the articles already mentioned, and it is never necessary to prove the exact language charged if the substance thereof be shown. (Ramsey v. Partridge, supra.)
The court charged the jury that words imputing the crime of larceny are actionable in themselves, and that from their use malice is presumed unless the contrary appears from the circumstances, occasion or manner of speaking; that if the jury believed from the évi
It is urged that these instructions violated the rule that exemplary damages can not be awarded upon proof of implied malice alone, and Walker v. Wickens,, 49 Kan. 42, 30 Pac. 181, and Wood v. Custer, 86 Kan. 387, 121 Pac. 355, are cited. In the latter case this rule was laid down: .
“In an action for slander, punitive damages can be allowed only where the defendant is found to have been actuated by express, as distinguished from implied, malice.” (Syl. ¶4.)
This opinion was filed February 10, 1912, nearly one year later than the trial of this cause below, but it is controlling.
It is also asserted that the charge of stealing shirts, socks and handkerchiefs was not a charge of larceny in this case, but the law does not require a charge of larceny, in order to be a basis for a slander suit, to be couched in terms requisite for an indictment or information. (Harrington v. Miles, 11 Kan. 480; Haag v. Cooley, 33 Kan. 387, 6 Pac. 585; Walker v. Wickens, 49 Kan. 42, 30 Pac. 181.) The defendant also assigns as error the refusal of the trial court to require the jury to retire and answer properly certain special ques
We find no error touching the first cause of action, but on account of the instructions as to the awárd of punitive damages upon a showing of implied malice only, and on account of failure to require the jury to answer the special questions, it can not be said that the second and third causes of action were tried free from error. We find no other matter requiring notice.
The judgment of the court, therefore, as to the first cause of action is affirmed, and as to the second and third' it is reversed, and the cause is remanded for further proceedings as to those tw;o causes of action only.