88 Neb. 487 | Neb. | 1911
The petition contains two counts, the first for slander and the second for malicious prosecution. There was a verdict in favor of plaintiff for $5,000 on the first cause of action and for $7,500 on the second. On the count for malicious prosecution a new trial was granted. On the count for slander a judgment was rendered on the verdict in favor of plaintiff, and defendant has appealed.
1. The overruling of an objection to the jurisdiction of the court is the first error assigned. In the argument on this point it-is asserted that the copy of the summons delivered by the sheriff to defendant did not contain a copy of the seal of the district court nor otherwise show the original was issued under seal. This omission is the basis of the assignment. Though defendant is appellant here,
2. An instruction containing the following language is assailed as erroneous: “As to the first cause of action, you are instructed that the defendant in his answer impliedly admits the speaking of the alleged slanderous words stated in the first cause of action in plaintiff’s petition, which he denies, but seeks to avoid their legal effect by alleging in substance that the alleged slanderous statements are true and privileged. * * * The defendant, therefore, having admitted the speaking of the words claimed to be slanderous by the plaintiff, you are directed to find as a fact that the defendant did speak of and concerning the'plaintiff the alleged defamatory wmrds contained in the first cause of action stated in plaintiff’s petition.”
According to the petition, the defamatory words spoken of and concerning plaintiff by defendant, omitting the
As shown by the instruction assailed, the court charged that defendant in his answer admitted the speaking of the Avords quoted, including those relating to plaintiff’s behavior at Peoria, and directed the jury to find as a fact that they were spoken of and concerning plaintiff by defendant. To justify the instruction plaintiff relies on the following allegations of the answer: “Defendant further alleges that the plaintiff was in the employ of this defendant, managing and controlling defendant’s stores at Wyoming and KeAvanee, Illinois, and in Plattsmouth, Nebraska, and that he, had control of all purchases and sales and the proceeds thereof, and represented that he was selling goods and making large profits thereon and discounting all bills, Avhich representations defendant believed and relied upon until in December, 1907, when this defendant found that there were unpaid bills for goods purchased by plaintiff on this defendant’s account, aggregating about $12,000, which were due and payable, and of which theretofore this defendant had been kept in ignorance ; and that on account of the unexpected presentation of such large amounts this defendant was wholly unprepared to pay the same, and on account of the persistency of the persons holding said claims for their payment this defendant applied to different banks for loans with which to pay said debts, and in answer to inquiries as to his need of money was compelled to and did make explanations as aforesaid of his indebtedness and his prior ignorance thereof, and that defendant had also found shortages in stock and moneys from sales and uncharged items of moneys from sales and uncharged items of moneys and
In reviewing the instruction criticised, the inquiry will be limited to the direction that defendant in his answer admitted speaking of and concerning plaintiff the following: “He was several days in Peoria out with a whore. He was seen out buggy-riding with her.” In the answer the uttering of these words was denied in a separate paragraph denying each and every allegation in the first count of the petition except plaintiff’s employment and the fact that he was a married man. The admissions of the answer
It is urged by plaintiff that the instruction is not reviewable for want of an exception at the proper time, but an exception is noted in the usual manner on the instruction itself, and it appears to have been taken pursuant to an established custom in .the trial court.
Reversed and remanded.