119 Va. 682 | Va. | 1916
delivered the opinion of the court.
The damaging words spoken of and concerning the plaintiff by the defendant are charged in his amended declaration to have been unlawfully and maliciously uttered in a letter written by the defendant to him and published to the Commonwealth’s attorney ' of Charles City county, to two justices of the peace of said county, to the Virginia Navigation Company and others, which letter is set out in the declaration and is as follows:
“Westover, Virginia, August 12, 1913. “H. T. Harrison:
“I am informed upon reliable authority, that for some time past you have frequently, publicly and vehemently declared your intention to break up the post-office at Westover, and that you have also told residents of the county that some breaking up would occur. Furthermore, I have no knowledge as to wha.t violent means you may propose to effect this end; whether by fire, explosives, etc. Therefore, you are hereby notified by me, in my official capacity of postmaster of said office, that your presence or appearance, at or near said office, wharf or road, will be viewed with suspicion, and in the light of a menace to my personal safety, and the safety of the post-office building, its patrons or the employees, or the contents of said building, some of which are the property of the TJ. S. Government. And that you may have no good reason to appear near said office or wharf—owing to the fact
“You have already been warned by the Commonwealth’s attorney in public court to refrain from trespassing on Westover plantation or annoying its owners; and a copy of this notice is being sent to him; to two justices of the peace; to the Va. Navigation Company, to the Post Office Department, and to the Speaker of the House of Delegates, the Hon. R. E. Byrd.
“C. H. Ramsay, P. M.”
It is then averred in the declaration that said written words “are such as, from their usual construction and common acception, are construed as insults, and tend to violence and breach of the peace,” and charges that the plaintiff had been injured and damaged $10,000.
The case was tried upon the plea of the general issue, and defendant’s special plea of justification No. 2, on which special plea the plaintiff joined issue.
The first assignment of error is to the refusal of the circuit court to order, on motion of the defendant, a change of venue. This motion was upon the ground that the defendant could not have a fair and impartial trial in said court, owing to the fact that there was prejudice against her in that community, and in support of the motion the defendant offered the affidavits of nine citizens of the county, all of which express the opinion that there could not be a fair and impartial trial in said county, owing to prejudice against the defendant in the community, but none of them, with the exception of L. J. Tremper, undertakes to state any fact or circumstance from which their respective con
Eight citizens of Charles City county made affidavit to the effect that from their knowledge, observation and conversation with others, there was no reason why the defendant could not have a perfectly fair trial in Charles City county of this suit then pending against her. Two of .these affiants, A. Harwood and R. Burton Davis, are practicing physicians in the county, and another, R. S. Major, is the clerk of the Circuit Court of Charles City county. After stating that he speaks from his own knowledge, observation and conversations with others, the affidavit of Dr. Davis says: “I certify that, in my judgment, it will be very easy
The record does not disclose the slightest difficulty in selecting from the first panel of jurors summoned in the case a jury free from all objections. Nor is there a single fact or circumstance appearing in the record tending, in the slightest degree, to show that the jury selected was not fair, impartial and “entirely unprejudiced towards either side.” ■
Affidavits in support of a motion for a change of venue must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had where the case is pending, and the court must be satisfied from the facts sworn to, and not from conclusions to which the party moving for a change of venue, or his witnesses, may depose—that is, the venue will not be changed for the mere belief of the party or his witnesses that he cannot have a fair trial in the jurisdiction where his case is pending. Facts and circumstances must appear satisfying the court that a fair trial of the case cannot be had where pending.
It is true, as stated in 40 Cyc. 134, “Local prejudice of such a character as to prevent a fair and impartial trial in the county or district where the action is brought is a well recognized ground for a change of venue.” And it is also true that statutes conferring the right to a change of venue are enacted with the view of according litigants a fair and impartial trial, and being in furtherance of justice, they should be liberally construed so as not to defeat the right; but where, as in the ease at bar, the affidavits relied on as supporting the motion for a change of venue state no facts or cir
The defendant, it appears, had been for sixteen years prior to the institution of this suit, the owner and occupant of Westover, one of the colonial homes on the James river, while plaintiff owned and lived, the most of his time at least, upon his farm adjoining Westover. For many years Westover was owned by the ancestors
Plaintiff consented to comply with defendant’s request, and she gave him checks amounting to $900, which he placed to his credit in bank to be disbursed°for her in the management of Westover estate, which money was duly expended and accounted for by plaintiff. With reference to staying at Westover while defendant was to be away, plaintiff, corroborated by his wife, says: “She asked us to come there to take charge of the place, saying it was much cooler than my house—and it was1—and also asked that we occupy her room on account of its coolness.” Mrs. Harrison says: “She (Mrs. Ramsay) made no exception of any room that we should not be in, but the one room she especially spoke of was that we should occupy her bedroom, her own bed-room, and she said on several occasions that it would give her great pleasure to think of us as occupying her bed-room.”
Plaintiff had charge of the West over estate from June 1st to the middle of September, but occupied the house only five weeks, and he, with his family, had not been at Westover many days when they received a cablegram from defendant, who was then in England, “to move out of her room into the Byrd room.” A letter from defendant followed which explained “that on account of the respect . . . that her sons held for her that nobody should occupy her room.” Plaintiff and his wife are positive in their statement that they were told to occupy defendant’s bed-room and not the Byrd room, and they recite facts as to the bed linen, etc., which impressed it on them; but the fact that they did, though innocently, occupy the “royal” bed-chamber, turned, as it would seem, defendant’s friendship for plaintiff and his wife into enmity. Other incidents
It further appears tbat plaintiff not only properly disbursed and accounted for tbe money left with him by defendant, but superintended tbe working of her corn crop on Westover, tbe cutting and threshing of tbe wheat, sold her wheat, her lambs, straw, etc., depositing tbe proceeds of bis sales to her credit in bank, wbicb deposits, fourteen in number, running from May 20 to August 30, aggregated $1,634.41. He also made out for defendant her quarterly post-office report, wbicb it appears was “a rather tedious job,” and in fact for three and a half months be neglected bis own affairs, giving more than half of bis time to those of tbe defendant.
Plaintiff left Westover some weeks before defendant’s return from abroad. After she returned plaintiff might have reasonably expected to bear from her in some way, but she has never written, spoken or ‘phoned to him since. She bad told plaintiff tbat be “would be handsomely rewarded for any service rendered,”
While the defendant was abroad one of the duties that plaintiff had assumed at her request was to try to sell Westover, and one of the reasons, as it appears, for leaving plaintiff with his family in charge was that they might show and entertain prospective purchasers. Plaintiff had listed Westover with a real estate agency, under instructions from defendant, and after she returned he received a letter from this agency, which he enclosed to her with some comment or suggestions. Before that he had written her a warning about her corn heating in the field, and stating a remedy; but instead of an answer to these letters, or either of them, plaintiff received a letter from defendant’s son, dated June 7, 1912, asking “a discontinuance of attempts at communication with his mother,” and threatening to take steps against him if he did not.
Plaintiff had been getting his mail at Westover post-office for many years, but in the early part of 1912 he undertook, with his neighbors, to influence the Post-Office Department to establish a rural route through
■ Plaintiff, as it plainly appears, submitted to all of these disagreeable experiences with the defendant quietly and without resentment, while the anger and malice of the defendant toward the plaintiff continued to increase as the time passed, and on August 4, 1913, she wrote him:
“H. T. Harrison: Owing to the difficulty in collecting wharfage dues on freight .handled for you, you are hereby informed that a cash payment of twenty-five cents for every box or bundle addressed or belonging to you before delivery thereof will be exacted;” (five cents was the regular charge) “and if such diffiulty continues no freight will be received at West-
It is not denied that this was the first intimation whatever plaintiff had of any complaint of him about wharfage, and it does not appear that there was any just cause for complaint indicated in the letter just quoted or testified to in this case. Following this letter, the letter of August 12, 1913, sued on, was written and published as charged in plaintiff’s declaration.
At the trial of this cause the court gave nine instructions asked by the plaintiff, numbered respectively 1, 2, 3, 4, 5, 6, 7, 8 and 9, and gave three of the four instructions asked by the defendant, designated “A,” “B,” “C,” and “D,” instruction “A” being given as modified by the court and “B” refused. All of the instructions appear in the official report of the ease, and we do not deem it necessary to comment seriatim upon the objections made to the instructions given for the plaintiff. These instructions embody principles of law which have been repeatedly sanctioned by this court. Dillard v. Collins, 25 Gratt. (66 Va.) 343; Chaffin v. Lynch, 83 Va. 116, 1 S. E. 803; s. c. 84 Va. 884, 6 S. E. 474; Rolland v. Batchelder, 84 Va. 664, 5 S. E. 695; Strode v. Clements, 96 Va. 553, 19 S. E. 177; Payne v. Tancil, 98 Va. 262, 35 S. E. 725; Tyree v. Harrison, 100 Va. 540, 42 S. E. 295; Brown v. N. & W. Ry. Co., 100 Va. 619, 42 S. E. 664, 60 L. R. A. 472; Moss v. Harwood, 112 Va. 584, 46 S. E. 385; Farley v. Thalhimer, 103 Va. 504, 49 S. E. 644.
The criticism of instruction No. 1 is that the court, having recognized that the communication sued on was privileged, should not have used the words, “strong
The insertion of this clause in the instruction was entirely proper, we think, in view of the evidence in the record, which strongly tended to prove that the defendant had no reason to suppose that plaintiff meant by anything with which she charged him to do her or her property any violence. Her own witnesses testify that the breaking up of the Westover post-office would follow as the result of plaintiff’s securing a rural delivery, or because of bad service at Westover, and not because of any violence contemplated by him such as the use of fire or dynamite. Defendant says: “Yes, Mr. Butler gave me to understand that he (Harrison) said he hoped the post-office would break up; that he said that was his object in one sense of the word in trying to start the rural route.” Another of her witnesses, C. M. Vaiden, had told her that plaintiff had said “that the service at Westover was bad and that the boat was irregular, and that he could get no supplies, and he was going to break up the post-office.” L. J. Tremper, another of her witnesses, had told her that plaintiff said, “that his intention was, when, he established that rural route, or took as much interest in it as he had, was for the purpose of breaking up Westover post-office,” etc. This information was given to defendant sometime before she wrote and published her letter of August 12, 1913, and in substance was all the information she ever had as to the threats she charged plaintiff with having made; and it was for the jury to say whether this information afforded her reasonable belief that plaintiff would use, or intended to use, “fire, explosives” or other violent
In Tyree v. Harrison, supra, the. opinion says: “The question of good faith, belief in the truth of the statement, and the existence of actual malice remain with the jury . . . It is for the court to say what communications are privileged, and for the jury to determine whether the privilege has been abused.”
Where there is any legal evidence tending to prove that the language complained of was disproportional in strength and violence to the occasion, though the occasion was privileged, the question of malice in the use of the words should not be taken from the jury. Farley v. Thalhimer, supra.
The case of Chaffin v. Lynch, supra (84 Va. 890, 6 S. E. 477), is also in point here, the opinion saying, “. . for although the occasion maybe privileged, yet if the communication complained of goes beyond the occasion, and is unnecessarily defamatory of the plaintiff, or is more extensively published than the circumstances of the case reasonably require; in these and in other like cases which might be mentioned as illustrations, the publication is not protected, though the defednant may have honestly believed that in all he did he was discharging a duty. In other words, a man’in defending himself, may not with impunity overstep the line of legitimate defense and unnecessarily become an aggressor. And whether, in the language of Baron Parke, above quoted, ‘the occasion or exigency’ has arisen which imposes .a duty upon the defendant is to be determined, not in accordance with
The instructions given for- the plaintiff were, entirely applicable to the facts which the evidence in the case tended to prove, have been sanctioned by this court in the cases above. cited, to which many more could have been added, and it would, therefore, serve no good purpose to prolong this opinion with a further discussion of them.
Defendant’s instruction “B,” refused, embodied practically the saíne proposition of law contained in instruction “A,” which was modified and given, and is also practically the same as defendant’s instruction “C,” given as asked; therefore, instruction “B” was rightly refused.
The amendment to instruction “A” consisted in the insertion, after the words “and as such the defendant is not liable in this action,” of the words “unless the jury shall believe from the evidence that such privilege occasion has been abused within the meaning set out in the other instructions given in this case.” It is claimed for the defendant that this instruction was taken from the case of Reusch v. Roanoke, &c. Co., 91 Va. 534, 22 S. E. 358, and that as no malice was proved in this case which would justify an alteration of the instruction, it was error not to give it as asked.
There was in the first case, as in this, a plea of justification, but the distinguishing feature of the two cases is that, in the first, the opinion of this court says that there was no légal evidence in the record to suggest malice in publishing the letter sued on, while in this case there was much evidence submitted to the jury tending to prove malice in the publication of the letter complained of; and, therefore, we are of opinion that
The next assignment of error is to the ruling of the court permitting plaintiff’s witness F. E. Barnett to testify as to a conversation he had with L. B. Butler, while Butler was acting in the capacity of manager of the Westover wharf, in which conversation Butler, in substance, stated that he had received instructions that Harrison (plaintiff) was not to handle or get any fish on Westover shore, etc. The ground of the objection to this evidence is that there was no proof offered of the agency of Butler to make the remark testified to by Barnett, but the court admitted the evidence upon the ground that as the Westover wharf (which was in charge of Butler) was a shipping place, and fish were shipped from there by fishermen, he (Butler) was the agent of the defendant and could state (as testified by Barnett) that he had been instructed by defendant that plaintiff could not handle or get any fish on Westover shore. Barnett testified also, and it is not denied, that Butler was the agent of the defendant at the wharf “to handle the post-office and freight.” In view of this evidence the declaration made by Butler to the witness, Barnett, not relating to a past transaction, but of and in relation to his employment concerning the management of affairs at the Westover wharf and its surroundings, was, we think, admissible in evidence as tending to prove his agency, and also the alleged instructions he had from his principal that the plaintiff was not to receive any fish on the Westover shore. Butler, as a witness for defendant, did not deny his agency for her at the Westover wharf, nor the statement testified to by Barnett, nor did defendant deny the statement of Barnett or any part of it.
“Assuming that the evidence may be regarded as slight, it was sufficient, under the circumstances, to cast the burden upon the defendant of rebutting the inferences, if untrue, by other evidertce showing the truth.” Mullen v. J. J. Quinlan & Co., 195 N. Y. 109, 87 N. E. 1078, 24 L. R. A. (N. S.) 511.
The defendant excepted to the admission in evidence, or rather to allowing Mrs. Harrison, wife of the plaintiff, while testifying as a witness for him, to read from a letter written by her to the defendant' some time prior to this suit, but the record does not show that any reason whatever was given at the trial-for objection to the admission of the letter or allowing Mrs. Harrison to read it dr parts of it. Contention is made here that this letter was plainly immaterial and injurious and that while not having any bearing upon the question at issue, “it was introduced manifestly for the purpose of leading the jury to believe that defendant had made' unjust complaints against the witness, and thereby put the defendant in an unfavorable light before the jury.”
It would seem to have been impossible, in the introduction of the evidence before the jury, to separate the plaintiff and his wife in the transactions out of which this action arose. They were both' present on each occasion that the defendant asked the plaintiff to take charge of Westover, and it was to Mrs. Harrison that the defendant spoke when she'invited or authorized them to occupy her bed-room. The wife as well as the husband was to carry out defendant’s instructions, and she necessarily saw the cablegram from the
Mrs. Harrison necessarily knew that Mr. Nance, the agent and attorney for defendant, had complained to her husband of broken lamp chimneys, and said that defendant thought that this item and “the rent of Westover were ample compensation for services rendered” by her husband; and feeling, as she says, that she had been reflected on and misunderstood by the defendant, as much as her husband, she wrote the letter here in question as her “explanation of everything Mrs. Ramsay complained of;” “I felt it was just to me and due to me that Mrs. Ramsay should hear my explanation of things that she was charging me with.” This letter from which Mrs. Harrison was permitted to read when testifying was written December
Besides this letter containing no- matter or recitals calculated to put the defendant in any more unfavorable light before the jury than other evidence which had been admitted without objection, it was, we think, so connected with the transactions out of which this suit arose as to become a part of the res gestae, and admissible in evidence on that ground also. 11 Michie’s Dig. Va. & W. Va. Rep. 907-8; Davis v. Frank, 33 Gratt. (74 Va.) 413, 420.
The ruling of the court admitting evidence to show the exercise of authority by the plaintiff over the servants at Westover is assigned as error; but the bill of exceptions, No. 8, upon which the assignment is based does not contain any evidence showing the exercise of such authority, and, therefore, the assignment will not be further considered.
The remaining assignment of error is to the refusal of the court to set aside the verdict of the jury because the damages assessed to the plaintiff, $2,500, are excessive.
As the learned counsel for the defendant in error suggest, this is an unique case in the judicial history of this State, being an action by a man against a woman for insulting words, but it is not without a precedent of recent date in this court, in which the plaintiff suing' under the statute for insulting words was a woman and a recovery in her favor of $3,000 damages was upheld. Boyd v. Boyd, 116 Va. 326, 82 S. E 110.
Stress is laid upon the plaintiff’s admission that he was not by the letter he complains of injured or damaged in his reputation among his neighbors. The object of the statute is "to prevent the use of insulting words, and in an action under the statute to recover damages by reason of their use, it is not necessary for the plaintiff to prove actual pecuniary loss resulting from the utterance of the insulting words in order that the jury might give punitive damages.
“The law presumes that damages result from the utterance of insulting words made actionable by our statute, just as it does where the words uttered are actionable per se; and it is not necessary in either case, in order to recover, to prove actual or pecuniary loss.” Boyd v. Boyd, supra, 18 Am. & Eng. Enc. L., p. 1061, note 6, p. 1062, note 4; Newell on I. & S.,
In the last cited case the opinion by Gaynor, J., says: “A person may be of such high character that the grossest libel would damage him none; but that would be no reason for withdrawing his ease from the wholesome, if not necessary, rule in respect of punitive damages. It is in such eases that the rule illustrates its chief value and necessity.”
In Blackwell v. Landreth, 90 Va. 748, 19 S. E. 791, the opinion says: “That it (the slander) has done her (the plaintiff) no permanent injury in her reputation, nor her adopted father either, and was stamped out by the truth coming to light, is no defense for him (defendant). His injury to this young girl was such as to entitle her to damages, to examplary damages, not only on her account, but to punish the offender.” 25 Cyc. pp. 490, 531.
“Vindictive, punitive or exemplary damages are awarded by the jury in their desire to signify their sense of the defendant’s conduct by fining him to a •certain extent, and therefor punish him by awarding ‘smart money’ or damages in excess of the amount which would be adequate compensation for the injury inflicted on the plaintiff’s reputation. In an English case a letter was sent privately to one person only, on whom it made no impression, as ‘he did not believe a word contained in it,’ but still the jury awarded three thousand pounds on the ground that ‘there must have been some vindictiveness.’ ” Howell on L. & S., sec. 990, citing Adams v. Coleridge, 1 Times L. R. 84.
As observed, the instructions to the jury in this case fairly and fully submitted it to the jury upon the facts which the evidence tended to prove, and rightly
“The appellate cdurt will not interfere with the verdict of a jury unless it appears that' the verdict was plainly extravagant or excessive. . . . It is not until the result of the deliberations of the jury appears in a form calculated to shock the understanding and implies so dubious conviction of their prejudice and
Upon the facts proven in this case, the verdict of the jury assessing plaintiff’s damages at $2,500, cannot be considered extravagant or excessive, but on the contrary is, we think, conservative and just.
It follows that we are of opinion that the judgment of the circuit court complained of is without error, and it is, therefore, affirmed.
Affirmed.