151 P. 869 | Okla. | 1915
Lead Opinion
Plaintiff in error will be designated as defendant, and defendant in error as plaintiff, *137 in accord with their respective titles in the trial court. The plaintiff sued, and, upon the verdict of nine of the 12 jurors, recovered judgment against the defendant for $100 for slander, alleged to have been committed on April 15, 1911, in reference to the former's testimony as a witness on April 12, 1911, in the case of the State of Oklahoma v. R.W. Ehler, known as Dick Ehler, as to Ehler's telephone number on February 14, 1911, and consisting of the following words spoken in the presence and hearing of a number of persons:
"I understand that Ed Gillis [the plaintiff in the instant case] swore that Dick Ehler's number was not 90 on the 14th day of February, and if he did he swore a damn lie, and I can prove it."
Among the other allegations of the petition are the following:
"That the statement aforesaid, so made by the defendant of and concerning this plaintiff, had reference to the testimony given by the plaintiff upon the trial of the action above referred to in the county court of Grant county. That the said defendant, by the use of said language and the making of said statement of and concerning this plaintiff, intended thereby to accuse and did accuse this plaintiff of the commission of the crime of perjury as a witness in said action."
Other essential facts, as well as the errors assigned, will be understood from the propositions discussed and the conclusions reached in this opinion.
The use by the defendant of the language quoted, taken in its most natural and obvious sense, that is, in the plain and popular sense in which the same would ordinarily be used and understood, clearly implies that such testimony was material in that case, and charges *138
the plaintiff with the crime of perjury, which renders the same actionable per se. Sections 3986, 2159, and 2160, Stat. 1890 (sections 4957, 4959, and 4960, Rev. Laws 1910); Hubbard v.Cowling,
The qualification, as to whether plaintiff had so sworn, by the word "understand" in the above-quoted language used by the defendant, does not render it innocuous or nonactionable, especially in view of the uncontroverted fact that the plaintiff did so swear. 18 Am. Eng. Enc. L. (2d Ed.) 970 and 972; 25 Cyc. 360; Wallace v. Kopenbrink,
The alleged slanderous words being actionable per se, it was unnecessary to allege and prove special injury or damage. N. S.Sherman Machine Co. v. Dun et al.,
According to some authorities — Newel on Slander Libel (2d Ed.) 330, note 7; Dillard v. Collins, 25 Grat. (Va.) 343; SanAntonio Light Pub. Co. v. Lewy,
There is no apparent error in the rejection of the proffered testimony of a witness that plaintiff was present during the trial of the Ehler Case, and rendered the latter assistance therein, and attended and testified without being subp œnaed, which conduct on the part of plaintiff is not shown to have been improper in any respect, and appears to have been undenied, and in the main admitted by the fact of plaintiff's testimony therein as charged by the defendant in the above quoted statement upon which this action is predicated, the testimony having been offered upon the theory that it tended to support defendant's allegation that plaintiff instituted the present action maliciously and without reasonable provocation, under section 2161, Stat. 1890 (section 4961, Rev. Laws 1910); and, even if its exclusion was error, it would seem harmless in view of the verdict establishing plaintiff's right to recover upon the ground that the defendant's charge that plaintiff swore to a lie was false.
Leading questions, ordinarily, are not permissible; but a case will not be reversed therefor, unless it appears that the court abused his discretion in permitting them: and no reversible error appears in the action of the court in permitting the witness W.B. Mitchell to be led to correct his testimony that defendant's said statement as to what plaintiff testified in the Ehler Case was that he understood that plaintiff had sworn that Dick Ehler's phone was 90, etc., by, in effect, inserting the word "not" between the word "was" and the number "90," and thus making his testimony conform to the testimony *140 of all the other witnesses, including the defendant, in this respect.
As against the alleged error of the court in permitting a witness, over objection, to detail a conversation within the first five days of March, 1911, between Hattie Olson, an employee and collector for the phone company, of which plaintiff was an officer, and Ehler, out of the presence and hearing of the defendant, in which Ehler claimed, and Miss Olson allowed, a credit of $1 on a bill she then presented to him, upon the ground that his residence phone, which defendant undertook to prove was in operation as No. 90 on February 14, 1911, was "out of commission" in that month, the plaintiff invokes rule 25 (38 Okla. vi, 137 Pac. xi), requiring the objector to set out "in his brief the full substance of the testimony to the admission * * * of which he objects, stating specifically his objections thereto"; and we feel that we should apply this rule, especially in view of the fact that the defendant does not in any manner point out, and we do not see upon the face of the proposition, any prejudicial error.
It was not error to refuse to instruct the jury that the plaintiff could "only recover upon proving the speaking of the slanderous statement charged in the petition, precisely astherein charged, as the actionable words were admittedly used by the defendant, and the correct rule only requires proof of the same words, or a sufficient number of the same to make out a case, in their substance as charged. A failure to prove all the connected words, or the proof of the actionable words in a differently constructed sentence or other combination, without change of meaning is not a material variance. Newell on Slander and Libel, 759, 760, 808-810; 18 Am. Eng. *141
Enc. L. 1078, 1079, 1178; Fleet v. Tichenor,
Under section 2161, Stat. 1890 (section 4961, Rev. Laws 1910), a defendant's right to have determined the question of whether the plaintiff's action was malicious or without reasonable provocation, and upon an affirmative finding to recover an attorney's fee of $100, arises out of and is wholly dependent upon a verdict in his favor upon the issue of his liability to action for the slander charged against him; and, as the verdict in the instant case was against him upon the main issue as to his liability to plaintiff's action, it was harmless error for the court to fail to charge upon the defendant's claim of malice and want of reasonable provocation.
This court will examine and weigh the evidence which tends to support the verdict and judgment only to ascertain if there is any evidence which reasonably tends to do so; but it will not weigh it against conflicting evidence, however weighty such conflicting evidence may seem. And, as there is an abundance of evidence which reasonably tends to support the verdict and judgment herein, and no prejudicial error appears in the proceedings or trial of the case in the court below, the judgment should be affirmed.
Addendum
The court, in the fifteenth paragraph, instructed the jury as follows:
"You are instructed that the defendant for a fifth defense claims that the institution of this suit on the part of the plaintiff was malicious and without probable cause. Upon this defense you are instructed that the *142 defendant has failed, and such defense should not be considered by you."
It may be here incidentally observed that the fifth defense is not a statement of any elemental fact or facts constituting a defense to plaintiff's action; but, in this so called defense, it is alleged that this action is malicious and without reasonable provocation on the part of plaintiff, together with allegations attributing such malice to a matter, of which there is no evidence, foreign to the facts alleged and issues tendered in plaintiff's petition, and imputing to the plaintiff a purpose in this action, of which there is no evidence, ulterior to that disclosed by his petition. The allegation that the action is without reasonable provocation is possibly intended to be predicated upon defendant's denial, in the first and second grounds of defense stated in his answer, that he made the statements imputed to him in the petition as defamatory, or his allegation in his third ground of defense that said statement is "true in substance and in fact." But, without deciding that it is necessary for a defendant to allege either malice or absence of reasonable provocation, to be entitled to a finding by the jury that the action was malicious or without reasonable provocation, if the verdict upon the main issue is in his favor, as a predicate for a judgment for costs, including an attorney's fee of $100 in his favor, under section 2161, Stat. 1890 (section 4961, Rev. Laws 1910), and to have this issue as to such malice and as to such absence of reasonable provocation submitted to the jury, at least upon request, when the evidence justifies it, we think the answer, eliminating said foreign matter therefrom as surplusage, or as merely evidence of malice, sufficiently alleges both malice and absence of reasonable provocation, certainly the latter, to *143 make this an issue in the case when the case was submitted to the jury. And this issue should have been submitted, although the refusal of the court to submit it is harmless, in view of the verdict upon the main issue. However, it was one thing to refuse to submit this requested issue to the jury, as the absence of such submission could not have affected the finding of the jury upon the submitted question as to the truth of the alleged defamatory matter, and quite another and different thing to instruct the jury that there was no evidence of either malice or of the absence of reasonable provocation on the part of the plaintiff, as this instruction, incidentally and in logical effect, negatived the truth of the alleged defamatory matter.
The answer alleges, and the defendant adduced evidence tending to prove, that the matter charged as defamatory in plaintiff's petition is true; that is, that the plaintiff had committed the crime of perjury in the Ehler case; and the evidence so adduced necessarily tends to prove that this action is malicious and without reasonable provocation or probable cause. If the plaintiff gave false testimony, and was thus guilty of perjury, in the Ehler case, the inference of malice and of absence of reasonable provocation on his part in the instant case would have to be regarded as irresistibly strong and logically necessary. And, as the converse of this proposition, if, as the court instructed, there was no evidence of malice or of absence of reasonable provocation, there must have been none of the truth of the alleged defamatory matter — the two propositions seem inseparable. They should stand or fall together in a case like this. True enough, as urged by plaintiff, the submission to the jury of the question of the truth of such defamatory *144 matter is inconsistent with and logically negatives the view we take of the instruction under consideration; but it does not cure the error, nor go farther towards doing so than to tend to confuse the minds of the jurors. It was at least, an instruction upon the weight of the evidence upon an issue, erroneously withdrawn thereby from the jury, inseparably connected with the main issue submitted, and decided in favor of the plaintiff, which in logical effect affected the substantial rights of the defendant and probably resulted in a miscarriage of justice.
At the time of the original opinion, the harmful effect of this error had not been clearly pointed out to this court, nor discovered, although this instruction was assigned as error and mentioned in the argument in the defendant's brief in connection with the refusal of the court to give the instruction we held to have been harmless error in the original opinion.
For the reasons stated, the judgment of the trial court should be reversed, and the case remanded, with instructions to grant defendant a new trial.
By the Court: It is so ordered.