Georgia v. Kepford , 45 Iowa 48 ( 1876 )

Day, J".

j. damages: erabie. I. On the trial of the cause the plaintiff introduced evidence tending to prove the speaking by defendant-of the words charged in the petition, and that in consequence thereof the wife of plaintiff abandoned him, and thereafter began an action for divorce against him on the ground of inhuman treatment.

The plaintiff was sworn in his own behalf, and was asked the following question: “ State what expense, if any, you were to in looking after and defending the divorce suit brought against you by your wife.”

The defendant objected to this question on the ground that the damage sought to be proved was too remote. The objection was overruled, and plaintiff answered that he spent thirty days time, worth two and one-half dollars per day, and paid his attorneys twenty-five dollars. The admission of this testimony is assigned as error.

The testimony, we think, was improperly admitted. Damage to be recoverable must be the proximate consequence of the act complained of; .it must be the consequence that follows the act, and not the secondary result from the first consequence, either alone or in combination with other circumstances. Dubuque Wood & Coal Association v. The City of Dubuque, 30 Iowa, 176.

An action for divorce on the ground of inhuman treatment is not the proximate consequence of a charge of larceny or adultery.

3___. slander. II. It is claimed that the court erred in charging that the jury might give special damages for the wife’s desertion, if caused by the speaking of the slanderous words alleged.

General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place, but are not implied by law; and are either superadded to general damages, arising from an act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indiiferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing. Chitty on Pleading, Vol. 1, p. 458, quoted in Sedgwick on Damages, sixth edition, p. 732. But damages, both general and special, must be the natural and proximate, though not the necessary, consequence of the act complained of. Sedgwick on Measure of Damages, p. 66; Beach v. Ranney, 2 Hill, 309 (314). A man is not responsible for all the remote and possible consequences which may result from his act, although he may be a wrong-doer. Beach v. Ranney, supra.

Now, whilst desertion by the wife of a husband against whom simply a slanderous charge of larceny and adultery had been preferred, might, in exceptional cases, follow, as a consequence of the charge, yet we think that such a result is not the natural and proximate consequence. A rule of law must not be adduced from what might follow in exceptional cases, and with peculiar temperaments, under particular circumstances, but from what is likely to follow under ordinary circumstanees. A very suspicious or a very credulous woman, might desert her husband upon the first slanderous report against him. But the question is not what a very credulous or a very suspicious woman might .do, but what would an ordinary woman naturally do? Guided by these principles, we have no hesitancy in holding that, whilst in this particular case the plaintiff’s wife may have abandoned him because of defendant’s slander, yet such desertion was not the natural and proximate consequence of the slander.

4_.__. • The petition alleges that the defendant spoke the slanderous words for the purpose of causing plaintiff’s wife to leave him. If this had been proved, and the instruction had been based upon the existence of such proof, it’ would not, probably, have been erroneous. For a party ought not to be permitted to complain that he has been held responsible for results which he sought to accomplish. But there does not seem to have been any proof that the words were spoken for this purpose; nor does the instruction r'efer to such purpose as an element necessary to recovery.

5. slander: • able perse; III. Appellant assigns as error the action of the court in charging that words imputing to plaintiff a want of chastity are actionable ver se. The plaintiff alleges, and as we have not the evidence m the record, we must presume he proved, that he was, at the time of speaking the words, a married man.

The petition alleges that defendant charged plaintiff with being a whore-master, and that he was whoring around .Millersburg. Plaintiff being a married man, these words imputed to him the crime of adultery, and they are actionable <per se.

6_. j eeny. IV. The court instructed as follows: “Under the defense of justification the defendant has introduced evidence tending to show that at one time, many'' years ago, while plaintiff and defendant were traveling through the county, the plaintiff caught a pig, the property of another, and avowed his intention of appropriating it to his own use. If you believe from the evidence that plaintiff did catch the pig with the intention to appropriate it to his own use, yet as he did not so appropriate it, but. let it go, you are instructed that such act did not constitute the crime of larceny, nor was it stealing.”

This instruction is erroneous in that it charges that a fact existed; but whether defendant was at all prejudiced by this charge we have no means of determining, for the evidence is not in the record.

The instruction, however, is, we think, otherwise erroneous. If the plaintiff took the pig into his possession with the intention of appropriating it to his own use, he was guilty of the crime of larceny, although he afterward let it go. Harrison v. The People, 50 N. Y., 518; Commonwealth v. Tuckis, 99 Mass., 431. The fact that plaintiff let the pig go was a proper consideration for the jury in determining the intent with which he took it into his possession.

7. dence. Y. The court instructed as follows: “The confession of plaintiff alone, if he was on trial for the crime of adultery, unless made in open court, would not warrant a conviction unless accompanied with other prool that the offense was committed; and evidence alone of plaintiff’s admission out of court to the effect that he had committed adultery or larceny would not be sufficient to justify you in finding that the plaintiff was guilty of such crimes.” Section 4427 of the Code, 4806 of the Revision, provides that “ the confession of the defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that the offense was committed.”

In Forshee v. Abrams, 2 Iowa, 571 (579), it was held that if a defendant imputes a crime, and justifies in his defense, he must, in order to sustain his plea, adduce such evidence as would be required to convict the plaintiff if on his trial for the crime imputed to him. The same doctrine was held in Fountain v. West, 23 Iowa, 9; and in Ellis v. Lindley, 38 Iowa, 461. It is claimed, however, that these decisions refer to the quantum and not to the kind* of proof. This may be admitted. Section 4427 refers to the quantum of proof. It does not make the confession of the defendant inadmissible as evidence, but declares that alone it shall not be sufficient in quantity to warrant a conviction. If the confession of the accused alone does not warrant his conviction when accused of a crime, under the foregoing decisions such confession will not, in an action of slander, in which the defendant justifies' an imputation of a crime, warrant' the jury in finding that the plaintiff has committed the crime charged. There is no error in this instruction.

For the errors above considered the judgment is

Eeversed.