40 Neb. 252 | Neb. | 1894
The defendant in error sued the plaintiff in error for slander. The language charged, omitting the innuendoes,, is as follows: “He (Nelson) is an unworthy, dishonest man, and a villain. He is a criminal. He is a forger, a perjurer, and an outlaw. He is a dishonest scoundrel. He has committed crimes which should put him in the penitentiary, and he has only narrowly escaped the peni-, tentiary several times. I have saved him from going to the penitentiary, when the officers were at the door of his house to arrest him, by paying a certain amount of money to the party causing the arrest.” The defendant admitted saying that the plaintiff was an unworthy, dis-honest man, but denied the other language. The defend
1. The first error argued relates to the admission of the testimony of the plaintiff below going to the falsity of the charges imputed to him by the words proved. This evidence begins as follows:
Q. Did you ever commit any crime?
A. Not that I know of; never.
Q. Did you ever do any act that under the laws of this or any other state would entitle you to be sent to the penitentiary?
A. No, sir; I did not.
Q,. In June, 1889, or before that year, were you an unworthy and dishonest man and a villain?
A. Not that I know of; no, sir.
Q,. Were you, during the same time, a criminal?
A. No, sir.
Q. Were you at that time, or before or since, a forger?
A. No, sir.
Continuing this line of examination plaintiff’s counsel followed through the whole of the slanderous language charged, and by similar questions drew from the plaint
The most serious question arises upon the objections which go to the substance of this testimony. The truth of the charges was not pleaded in justification. The defendant relied upon the occasion of his making the charges and upon absence of malice. The question presented is, therefore, whether in an action for slander, the circumstances of the publication presenting a case of qualified privilege, the truth not being pleaded in defense, but privilege and good faith being pleaded, the falsity of the charges may be affirmatively shown to establish malice.
In McCleneghan v. Reid, 34 Neb., 472, it was said: “To show malice the plaintiff introduced proof tending to show the falsity of the charge, and that the defendant below had, at other times than those charged in the petition, uttered the words claimed to be slanderous. Such proof is admissible to show the quo animo.” In that case there was matter in the answer which amounted to a plea of justification, and the order of proof was declared to be in the discretion of the trial court, and a judgment not subject to reversal upon that ground, except for abuse of discretion. While the language used is significant in its bearing upon this case, the condition of the issues forbids its being accepted as authority upon the point here presented. We must, therefore, examine the question further.
Neither the opinions of text-writers nor the decisions of courts afford any very satisfactory test. One writer says: “ The mere fact that the words are now proved or admitted to be false is no evidence of malice unless evidence be also given by the plaintiff to show that the defendant knew they were false at the time of publication. * * * As a general rule, therefore, the plaintiff cannot give any evidence as to the falsity of the charge unless a justification be pleaded, for such evidence is no proof of malice and the truth of the charge is not in issue.” (Odgers, Libel & Slander, 274.)
In Child v. Affleck, 9 B. & C. [Eng.], 403, there is an intimation that in a case of qualified privilege evidence of the falsity of the charge is proper. The court said: “If, indeed, the plaintiff had distinctly proved the falsehood of the statement the case would have assumed a different shape, but according to the case proved the nonsuit was right.” In Fairman v. Ives, 5 B. & Ald. [Eng.], 642, it is said: “If the communication be made maliciously the case would be otherwise, and the falsehood of the fact stated might, in some cases, be evidence of malice.” In Blagg v. Sturt, 10 Q. B. [Eng.], 899, Chief Justice Denman
Upon a review of the decisions we think the proper rule to be that while the plaintiff might rely upon the presumption of falsity of the charges made against him, he is not required to do so, but may introduce affirmative evidence of such falsity in cases where malice must be expressly shown, as a step in the proof of malice; but the falsity of the charges is not in itself sufficient to establish malice, and only becomes sufficient when coupled with evidence tending to show that the plaintiff made the charges knowing them to be false, or with other evidence tending to show malice. The objections here made, except as to the form of the questions, were directed simply in general terms to
2. It is next urged that the court erred in admitting certain testimony of the witness Russell. The defendant, to show a reasonable ground for the charges affecting plaintiff's honesty, relied largely upon evidence that the plaintiff •had mortgaged to defendant horses in plaintiff's possession but belonging to one McLaughlin. Russell’s attention was called to a church trial in 1888 or 1889, and the following question was asked: “ In the conference, or trial, or whatever it was that was held there, did Dr. McLaughlin, who is a witness on the stand here, say that the team of horses referred to in this mortgage to Mr. Laing wasn’t his property and they didn’t belong to him, but that they belonged to Nelson, but that he thought Nelson ought not to'have mortgaged them without speaking to him about it?” The question was answered in the affirmative. The objection made to it was that it was not proper rebuttal testimony, because it was not shown that there was no record of the evidence, and because no proper foundation had been laid. It was proper in rebuttal, if there was a proper foundation for it, for the purpose of impeaching McLaughlin's evidence offered by defendant. The objection that it could not be shown by parol is equally untenable and is not now urged, and we think counsel have overlooked a portion of the cross-examination of McLaughlin where the foundation was laid. McLaughlin’s attention was called to this church trial, and this question asked:
Q. At that time, in Waterloo, and at that investigation, didn’t you make the statement in the presence of a large number of persons?
A. No, sir; not a large number of persons.
Q,. Well, a small number of persons, then. 'Didn’t you make the statement to a small number of persons that Nelson bought these horses, and that they were his horses, and
A. No, sir; not any such statement. I made just such a statement as I give here in regard to the horses.
While this is not the precise language of the question put to Russell, it is the same in substance, and was a sufficient foundation for the impeaching testimony. ; ■■
3. The following question was asked the plaintiff: “ You may state if, in July, after Mr. Laing had made these charges against you to which you have heard the witness testify this morning, and learned that it was generally talked about in the community, whether it caused you any anxiety or any suffering?” Objected to, as incompetent, irrelevant, and improper. Objection overruled. Plaintiff excepts. Answer: “Yes, sir; it did.” There was nothing further upon this subject, and the admission of this evidence is assigned as error. The argument is that as to such language as was not actionable per se, mental suffering, without other damage, is not such a special damage as will alone justify a recovery; and that as to such language-as was actionable per se, no evidence at all was admissible to show damages. The objection, as we have seen, was general in its nature, and if the testimony was competent and relevant for any purpose it was admissible. The question as to the right to recover for mental suffering because of words not actionable per se may, therefore, be dismissed from our inquiry.
The case of Boldt v. Budwig, 19 Neb., 739, is relied upon in support of the proposition that the evidence was not admissible to support the allegations of the language actionable per se. The court was there considering 'an instruction permitting in such a case the jury to consider mental suffering without any positive evidence thereof, and the language used must be taken in connection with the question under consideration. The language is as follows:
4. The only other point urged relates to the instructions, and the argument is addressed to the first instruction given by the court of its own motion. This instruction is as follows: “That the burden of proof is upon the plaintiff to satisfy you by a preponderance of the testimony of the speaking by the defendant of the words, or some of them, charged in the petition as slanderous; and if you find from the testimony that such slanderous words, or some of them, were spoken by the defendant, you will next inquire whether or not they were spoken under such circumstances as rendered them privileged, within the designation given by the law to privileged communications.” It is said that this instruction, especially when taken with the others in the ease, casts upon the defendant the burden of disproving malice. We do not think so. The instruction quoted referred to only a portion of the case. The following instruction expressly told the jury that “the law presumes malice from the use of slanderous words unless they were used under such circumstances as rendered them privileged.” This was quite a distinct instruction that malice was not presumed in cases of privilege, and other instructions fully covered the question of privilege.
In a number of instructions given at the request of the plaintiff the issue as to malice was placed affirmatively, so that the jury could not very well infer that the burden was on the defendant. As an illustration we quote the nineteenth : “ You are further instructed that if you believe from the evidence that the defendant, during the month of June, A. D. 1890, spoke of and concerning the plaintiff the words herein sued upon, then you have a right to consider all the circumstances in evidence to determine the question whether such words were spoken by the defeudant maliciously; and if you believe, from all the evidence and circumstances in evidence in this case, that the defend
The defendant requested twenty-five instructions, twenty-four of which were given. The issue was in these instructions stated to the jury substantially as in tho-¡e requested by the plaintiff. The single instruction refused related to-an entirely different branch of the case. Upon an examination of all the instructions we cannot find that the court in any place said or implied that the burden upon the issue of malice was upon the defendant. The most that can be urged is that the jury was not distinctly told that it was-upon the plaintiff; but if the defendant had desired such an instruction he should have requested it.
Judgment affirmed.