Miles v. Harrington, 8 Kan. 425

Miles v. Harrington

8 Kan. 425 | Kan. | 1871

The opinion of the court was delivered by.

Yalenunb, J.:

This whole case depends upon whether there was error in the instructions given and refused to be given by the court below to the jury. The plaintiff in error (defendant below) complains of one instruction asked by himself and refused as asked, but modified and given, and of two instructions asked by the defendant in error, and given. The record does not purport to contain all the instructions given or refused, and hence it is difficult for ns to determine whether the court below erred or not.

*429The action was one of slander for words spoked which were per se slanderous, words charging perjury; and, as the record comes to us, it would seem to be established that the words were spoken and published, and that they were false and malicious. The plaintiff below did not allege any special damages in his petition. The defendant helow set up certain facts in the second count of his answer which he claimed to be a complete defense to the plaintiff’s action. He gave evidence at the trial tending to prove these facts; and then upon the charge of the court to the jury he attempted to raise the question whether or not these facts were a complete defense. The court seems to have considered that these facts should be received and considered by the jury only in mitigation of damages. "Whether the defendant below succeeded in raising the question he desired to raise we think is doubtful; but conceding that he did, still we think the view of the case taken by the court below was the correct one.

1. slander; dofensc; justiiication. The question is this: "When slanderous words which are per se actionable are spoken, “ in a moment of heat and passion, induced by any Tsomel improper conduct imme- ° u diately preceding on the part of the plaintiff,” are the said circumstances under which the words were spoken a complete defense to the action, or should they be considered by the jury only in mitigation of damages? We think they should be considered by the jury only in mitigation of damages. We are not aware that any court has ever decided that such circumstances were a complete defense, but many courts have decided that they should be received only in mitigation of damages: Hotchkiss v. Lathrop, 1 Johns., 286; Beardsley v. Maynard, 4 Wend., 336, and 7 id., 560; Gould v. Weed, 12 id., 12, 24; Dolevin v. Wilder, 34 How. Pr., 489, 496; Larned v. Buffington, 3 Mass., 553; Child v. Homer, 13 Pick., 503; McClintock v. Crick, 4 Iowa, 453; Ranger v. Goodrich, 17 Wis., 78; Brown v. Brooks, 3 Ind., 518; Powers v. Presgroves, 38 Miss., 227; Thophagen v. Carpenter, 1 City Hall R., 55; Duncan v. Brown, 15 B. Mon., 186; Steever v. Buhler, 1 Miles, 146; Else v. Ferris, Anthony N. P., 23; Wakeley v. Johnson, Ry. & M., *430422; Watts v. Frazer, 34 Eng. Com. L., 82; Hosley v. Brooks, 20 Ill., 116, 119; Thomas v. Dunnaway, 30 id., 373; Botolor v. Bell, 1 Md., 173; Long v. Eakle, 4 id., 454; Davis v. Griffith, 4 Gill & J., 342.

% Damages; general; compensatory. The reasoning of the plaintiff in error is erroneous. 'He seems to claim that upon a petition in an action of slander such as this which alleges no special damages no n 7 , damages except exemplary damages can be recovered; and if the plaintiff himself is in any fault he cannot recover even exemplary damages. We think both of these claims are erroneous. On such a petition the plaintiff may recover for all'damages that are the necessary and natural result of the words spoken. (2 Gr. Ev., §§ 254, 420.) These are general damages, in contradistinction to special damages, and are not exemplary at all, but are strictly compensatory. There is nothing in this case that shows that the jury gave any but compensatory damages. The court did not instruct them that they might give exemplary damages; and as all the instructions are not brought to this court, we are at liberty to suppose that the court instructed them that they could not give exemplary damages. And as but little of the evidence has been brought to this court it must be presumed that the amount given by the jury was correct.

3. Damages; empiary.’ In an action like this, where the words spoken are actionable per se, damages are presumed, without any proof of actual damages, either general or special; (Newbit v. Statuck, 35 Me., 315; Williams v. Spears, 11 Ala., 138; Holt v. Schofield, 6 Term R., 619;) and if no special damages are claimed in the petition, no general damages proved, nor exemplary damages allowed by the jury, still the jury should allow nominal damages for the plaintiff. (2 Gr. Ev., §254.) In such a case as this the law would permit the jury upon proper testimony to allow exemplary damages; and whether they do allow such damages or not is a question for them under all the circumstances. The judgment of the court below is affirmed.

All the Justices concurring.