Irwin v. Taubman , 30 S.D. 502 ( 1912 )

WHITING, J.

Plaintiff brought this action seeking to recover damages which he alleged to have suffered through the publication by defendant, in -a newspaper owned by defendant, of an article containing much which were certainly libelous in character. In that part of the publication which is material to the questions presented to us, the plaintiff, was accused with having, while engaged as foreman of a petit jury in the trial of an important criminal, action wherein one Lewis was defendant, tampered with and wrongfully influenced -the actions and verdict of the jurors whereby a verdict of “not guilty” was returned in favor of said Lewis; and said publication, after detailing to some extent the methods used in influencing the said jurors, alleged, “This rotten deal was ‘put up’ in -the county treasurer’s office, and Bill Irwin was picked -to do -the dirty work.” Defendant, answering, pleaded the truthfulness of the accusations contained in such publication, and in connection therewith alleged, with much detail, facts going to show the truthfulness of such publication; one of the said allegations being “that the corrupt transaction by which the said jury was induced to agree upon a verdict of acquittal was planned and agreed upon by the said plaintiff and the agents of said Lezvisd1 Defendant also- alleged, with considerable detail, stories that had been told to him by different parties named, all of which 'would tend to show the truthfulness of the matters contained in such publication, and as a part of these allegations he alleged that "the story has often been told to this defendant in this cause, of how an acquittal in said action was brought about through the influence and negotiations of the plaintiff in this action, who was the foreman of the said jury”; this allegation being followed by details of what had been told to defendant. Plaintiff moved the trial court asking that defendant be required to serve and file a bill of particulars specifying in detail the name or names of the alleged “agents • of said Lewis” with •whom plaintiff was charged to have entered into the corrupt transaction, and giving the name or names of the persons by whom “the story has often been told * * * of how the acquittal * * * was brought about through the influence and negotiations of the plaintiff in this action.” This motion was granted' and an order issued requiring defendant to serve a bill of particulars specifying therein “who the said agent or agents of the said Lewis was or were” and “the name or names of such persons claimed to have often made the statements to defendant herein.” It is from this order that the defendant has appealed.

[1] Appellant contends that there is no statutory authority authorizing- a bill of particulars in an action of this nature — that section 135 of the Code of Civil Procedure relates to actions upon account only. Appellant concedes that the courts of the state of New York — from whose Code the above section was taken — have held that said section authorizes the ordering' of a bill of particulars in any and all casos. Furthermore, appellant concedes that, according to the weight of authority, even at common law, the courts had the inherent power to grant an order requiring a bill of particulars whenever the court deemed it proper. We think, both under the statute as construed by the courts of New York— whose decisions we feel warranted in following — and also outside of the statute, the power is vested in the -trial court to order bills of particulars in any case where a proper -showing is made.

[2] Appellant further contends that this power, if vested in the court, is a discretionary one; and that, in the case at bar, it was an abuse of discretion to grant the order because the showing upon the motion was insufficient; and, lastly, that the order granted required what could not properly be required in a bill of particulars. So far as -the contention that the showing made was insufficient is concerned, it is without merit, as it does not appear that any such question was raised before the lower -court.

[3] The sole matter for -our determination -is whether the order of -the trial -court requires defendant to furnish information other than such as is contemplated by a bill of particulars.

A reading of the decisions of the various courts reveals a great diversity of views as to what is the true purpose of a bill of particulars. In some it -would seem that, through a bill of particulars, a party could seek almost any information desired in relation to his opponent’s cause of action or defense and the means by which he expected to establish same; while under other decisions it. is held that the particulars that can be secured are analogous to those that a proper bill of particulars should furnish in relation to an account — that these particulars should «imply allege with more detail that which form's the basis of -the cause of action or defense, or, as stated in 31 Cyc. 565: “The proper office of a bill of particulars is to inform the opposite party and the court of the precise nature and character of the cause of action or defense for which the pleader contends in respect to any material or issuable fact in the case and which is not specifically set out in his pleadings, and which cannot, in many cases, be given in the pleading without great prolixity. It is properly an amplification of the pleading, designed to make more specific general allegations appearing therein, and thus avoid a surprise at the trial.”

Perhaps no courts have been called upon to determine what constitutes a proper bill of particulars more frequently than have the courts of New York, and we believe that her courts have drawn the proper distinction between what is and what is not the proper subject-matter of such a bill, and in no case that has come to our attention has this been more clearly done than in the case of Ball v. Evening Post Publishing Co., 38 Hun, 11. This also was an action for libel brought against a newspaper, and based upon certain alleged false and scandalous publications derogatory -to the character of plaintiff. The publications in question accused the plaintiff of having published and circulated false and scandalous statements of and concerning Grover Cleveland, who was then a candidate for the presidency. The answer, among other things, charged that plaintiff “and certain other false-minded persons” had confederated together in causing the publication of slanderous matters concerning said Cleveland; that they ■had caused to- be published “divers false, scurrilous, vile and scandalous stories and charges;” that plaintiff was the pretended chairman of ,a certain political organization and, as such, had solicited funds from “various political parties and people and candidates for office”; and that, after the publication by plaintiff of the charges against Mr. Cleveland, the defendant, having ascertained from “trustworthy sources” the falsity of said charges, did then publish of and concerning the plaintiff the articles mentioned in the complaint. The plaintiff in said action, as did the plaintiff in the action at bar, asked for a bill of particulars, and the trial court granted the order appealed from therein, which order required the defendant to give the plaintiff the following particulars : (i) The names of the “evil-minded persons” with whom plaintiff was charged to have confederated. (2) The particulars of such “false, vile and scandalous stories and charges,” specifying the dates when and the places where each of the same were published, how published, and the contents of each publication. (6) The names and residences of the “political parties and people and candidates” from whom plaintiff is alleged to have received or solicited subscriptions with the dates and amounts of their 'subscriptions. (7) The names and residences of the “credible persons” [“trustworthy sources”] from whom defendant claims to have ascertained the falsity of plaintiffs alleged charges, together with the times when said information was acquired.

Tne New York court discussed fully the question of the authority of the tpial court -to order a bill of particulars in a case of this nature, and, after holding that such court had the power, it then considered whether or not such power had been abused, and in considering .that matters said: “The only proper office of a bill of particulars is to give information of the specific proposition for which the pleader contends, in respect to any material and issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition. * * * To constitute a good answer, in justification, in an action of libel, it is not enough to allege that the alleged libelous matter complained of is true. At common law it is necessary to state the particular facts which evince the truth of the imputation upon the plaintiff’s character, whether the imputation is of a general or specific nature. And as Chitty states the rule, it is necessary, although the bill contains a general imputation upon the plaintiff’s character, that the plea should -state specific facte, showing in what particular instances and in what exact manner he has misconducted' himself. Ch. PI. 494, 495. It was held in Wachter v. Quenzer, 29 N. Y. 547, that the substance of that rule was not abolished by the Code. But that rule requires only a statement of the necessary facte, and not of the evidence of those facts. The rule is the same in respect to pleading- mitigating circumstances, since only such as are pleaded can be proved. Old Code, § 165; Willover v. Hill, 72 N. Y. 36; New Code, § 536, and Troop’s note 'to same. Tested by the rules above stated, the order appealed from, in our judgment, properly requires particulars of the alleged ‘false, vile and scandalous stories and charges’ referred to in the second clause of the order. It is not enough for the pleader thus to characterize the ‘stories and charges,’ but they should be set out, in order that the plaintiff may be apprised what he is to meet, and to that end the dates and places and manner of their publication, with the contents of each publication, should be stated. Besides, the publications should be set out, to enable the court to judge of their character, since upon their character depends the sufficiency o,f. the justification. * * * So, also, the sixth clause is affirmed, which requires particulars of the names and residences of the persons, political parties, and candidates for office from whom the plaintiff is alleged in the answer to have received or solicited subscriptions or sums of money, and other particulars specified in that clause. All these matters, we conceive, are embraced by the rule above stated as to what an answer in justification should contain. But the first clause of the order which requires a statement of the names of the ‘evil-minded persons’ with whom the plaintiff is charged to have confederated for the purpose of publishing false stories, etc., calls for matters which, if not immaterial, are mere evidence. The material fact in that connection is the publication by the plaintiff of scandalous matter, and it is immaterial whether in causing such publication he acted alone or with confederates, and, if in the latter mode, the giving of the names of the confederates would be a mere disclosure of the evidence relied upon to prove the material allegation. * * *The requirement in the seventh clause that the defendant state the particulars therein specified respecting the ‘sources’ and ‘credible persons’ from whom he claims to have ascertained the falsity of the plaintiff’s charges, etc., calls for mere evidence in respect to a matter not relating to the plaintiff’s conduct.”

Testing the answer in this case by the rules that guided the court in the case of Ball v. Evening Post Publishing Co., supra, what conclusion, must we reach? It must be borne in mind that plaintiff was charged with two things, not only with tampering with the jury of which he was foreman, but also with having, with the agents of Lewis, entered into a deal to corrupt such jury. Either one of -such charges was libelous in character. If the first had been the only charge, then the truthfulness thereof would' have been the only material issue, and it would have been the details regarding the tampering of fhe jury only, and not those •pertaining to any previous deal or agreement made with other parties, to which plaintiff would have been entitled, either in the answer or in a bill of particulars. If such were the situation, then what'the New York court said in relation to the first clause of the order before it would be directly in point, and plaintiff would certainly not be entitled to the names of the “agents of said Lewis,” as this would be a matter wholly immaterial to the issue and at the best mere evidence. But as defendant had charged plaintiff with entering into the corrupt deal or transaction, which charge would have been libelous regardless of any charge that this deal or transaction had been carried out by plaintiff, the plaintiff was entitled to be informed as to who the persons were with whom it was claimed he had the transaction, just as the plaintiff in the New York case was entitled to know whom he was accused of taking political subscriptions from — it was a detail in relation to certain wrongful conduct charged against plaintiff. What the New York court said in relation to the “seventh clause” of the order before it is directly applicable to that part of the order before us wherein the court directs that the bill of particulars give “the name or names of such persons claimed to have often made the -statements to defendant.” This part of the -order calls for mere evidence in respect to a matter not relating to the plaintiff’s conduct.

The order -appealed from should be modified by omitting therefrom the provision requiring defendant -to reveal “the name or names- of such persons -claimed to have often made the statements to defendant herein,” and, as so modified, it should be and is affirmed, without costs -to either party.

HANEY, J., taking no part in the decision.