Pavlovski v. Thornton ( 1892 )

Judgment affirmed,.

Tbe verdict is contrary to law and evidence. It being clearlymade to appear that tbe slanderous words, if spoken by tbe defendant, were spoken to tbe plaintiff or to the defendant’s wife, and if spoken to the plaintiff, in a quarrel between her and the defendant, they were not so spoken and said of her as to constitute slander, and therefore they were not so spoken as to be the basis of an action for slander; and if they were spoken to the wife of the defendant, they were privileged. The words spoken of the plaintiff were not actionable, being spoken to the plaintiff at the time and under the circumstances they were, it not being made to appear they were spoken to injure plaintiff’s reputation. The evidence do.es not support and follow the case made in the declaration, the declaration alleging that the words were spoken of the plaintiff, and the evidence showing that they were spoken to her.

The verdict is grossly excessive, and shows that the jury were governed by and acted upon undue prejudice against the defendant. The words, if spoken at all, were spoken under such circumstances as not to call for .such vindictive damages as the jury allowed; for it clearly appeared that the defendant at the time was laboring under some aberration of mind, and therefore could not be legally held to rigid accountability therefor. The evidence failed to show that the words were maliciously spoken, and to injure the reputation and character of the plaintiff. And the jury disregarded and found contrary to the following charge of the court, and .the evidence upon which it was based: “It is your privilege and right to take into consideration the surrounding circumstances under which these words were spoken, if spoken; you are to consider whether maliciously done, or whether the party was simply drunk or drinking, .whether there was any malice or things of that sort. If you find that it was just simply the ravings of a drunk man or something of that sort, then the damages in this case ought to be modified to that extent.”

The court charged that if the defendant spoke these words to and in the presence of the plaintiff, she would have the right to recover. This is alleged to be contrary to law, i. e. the words, to constitute slander, must be spoken to a third person and not to the plaintiff herself.

George & Walter Harris and Alexander & Wright, for plaintiff' in error. Wright & Meyerhardt, contra.