Smith v. Gillis , 51 Okla. 134 ( 1915 )

Plaintiff in error will be designated as defendant, and defendant in error as plaintiff, 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 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, 36 Okla. 603, 129 P. 714; Bodine v. Times-JournalPub. Co., 26 Okla. 135, 110 P. 1096, 31 L. R. A. (N. S.) 147;Miles v. Harrington, 8 Kan. 425; Haag v. Cooly,33 Kan. 389, 6 P. 585.

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, 31 Okla. 26,119 P. 579; Johnson v. Brown, 57 Barb. (N.Y.) 118; Wheeler v. Shields, 2 Scam. (Ill.) 348.

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., 28 Okla. 447, 114 P. 617.

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, 52 Tex. Civ. App. 22,113 S.W. 574 — malice should be expressly alleged in such actions; but the sections of our statute hereinbefore cited define slander, without specifying malice as an element thereof, omit malice from the facts declared to be sufficient to be alleged in pleading the same, and provide that "an injurious publication is presumed to be malicious if no justifiable motive for making it is shown"; and the petition in the instant case states a cause of action, notwithstanding malice is not specifically alleged. Dixon v. Allen, 69 Cal. 527, 11 P. 179; Cadle v.McIntosh, 51 Ind. App. 365, 99 N.E. 779; also see Redgate v.Roush, 61 Kan. 480, 59 P. 1050, 49 L. R. A. 236.

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 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. Enc. L. 1078, 1079, 1178; Fleet v. Tichenor, 156 Cal. 343,104 P. 458, 34 L. R. A. (N. S.) 323.

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.

ON REHEARING.