Langton v. Hagerty , 35 Wis. 150 ( 1874 )

Lyon, J.

L It is objected that the complaint fails to state a cause of action because it fails to state anything by way of inducement to show the meaning of the alleged slanderous words. It seems to be claimed that it should be stated in the complaint that one Michael Nehill was killed, and that in a conversation of and concerning the killing of said Nehill, the defendant spoke the words complained of. If the complaint shows that the defendant charged that the plaintiff had committed the crimes of murder and of larceny, it states a cause of action, although it fails to show' who was murdered or who was robbed. Otherwise it would not be actionable to say of a man, “ He is a murderer,” or “ He is a thief,” unless he who speaks the words also tells whom the accused murdered or robbed, so that the proper inducement may be incorporated in the complaint. There is no such absurd rule of law. If I say of a man falsely, “He is a murderer,” I must answer in damages for the slander although I do not name the murdered man, and although the victim' of the slander may not know, and may not even suspect, to whom I refer' as having been murdered.

If there is a rule of pleading which is settled, it is, that in an action for slander, where the alleged slanderous words are actionable per se, and where there is no ambiguity in respect to the actionable quality of the language, or the person whom it concerns, no inducement is necessary.

Here the words are actionable per se. They impute to the plaintiff the crimes of murder and larceny, not in ambiguous or equivocal terms requiring the aid of extrinsic facts to explain and point their meaning and significance, but in the most plain, direct and unmistakeable terms. "What fact or circumstance can make more clear and explicit the charge, “ He murdered the man, and stole all of his money from him ? ” Of course, the innuendo cannot extend the meaning of the words, its office being merely to point their meaning to some precedent matter expressed in the pleading ot necessarily understood. Weil v. Schmidt, 28 Wis., 137. But in this complaint the innuendo that the man whom the plaintiff was accused of murdering, was Michael Nehill, is unnecessar}*-. Omit the innuendo entirely, and the complaint would be good on demurrer; and most certainly was it sufficient after the answer was interposed, which supplied both inducement and colbqiáum bjr the statements that the plaintiff killed Nehill, and that the slanderous words (if spoken at all) were spoken of and concerning such killing.

II. The next question is, whether the court erred in permitting the plaintiff, in the first instance, to give testimony of the circumstances under which he billed Nehill. Malice is an important element to be considered in fixing or assessing the damages, and it is competent for the plaintiff to prove any fact which tends to show that the slanderous words were spoken by the defendant maliciously. And he may do this, not only by way of rebuttal, but in the first instance, and before any testimony has been introduced by the defendant. ' The answer to the question whether the words complained of were or were not" spoken maliciously, may depend greatly upon the circumstances under which Nehill was killed. Hence, if the plaintiff claimed that those circumstances precluded any just ground for the belief that he had been guilty of any crime, he ought to be permitted to prove them as tending to show the malice of the defendant in imputing to him, in the transaction, the crimes of murder and larceny.

But if such testimony was not admissible, under a strict application of the rules of evidence, except by way of rebuttal, it was probably within the range of the sound discretion of the. court to receive it out of -its order. It is not apparent how the defendant could_have been prejudiced by so receiving the-testimony.

• No good reason is perceived why the telegram, by virtue of which the plaintiff arrested Nehill, was not properly received as evidence. Indeed, it seems to be conceded that if it was competent for the plaintiff to show the circumstances of the killing of Nehill, the telegram was properly admitted, being part cf the res gesta.

III. We now come to consider the rulings of the court in refusing to give certain proposed instructions to the jury, and also to consider the instructions which were given. These extend through nearly thirty folios of the hill of exceptions, and are altogether too voluminous to he here inserted. There is much criticism of these rulings and instructions in the brief of counsel for the defendant; but the objections thereto which demand consideration are not numerous, and may readily be disposed of by the application thereto of a few well-settled general principles of law.

The court refused to charge the jury that if the words complained of were spoken by the defendant without malice and in the belief that they were true, or, if the plaintiff’s reputation was so bad that the slanderous charges could not affect it, or if the words spoken were only to the effect that the plaintiff had killed a man, in either case the plaintiff could not recover; also, that the testimony of the defendant was entitled to as much credit as that of any other witness; and also, that it was a question for the jury whether the killing of Nehill was a justifiable or a felonious homicide.

These proposed instructions were all properly refused. The right of the plaintiff to recover does not depend upon the malice of the defendant, the words spoken not being privileged. Wilson v. Noonan; ^* Servatius v. Pichel, 34 Wis., 292. Neither can the action be defeated entirely by proof of the bad character of the plaintiff. These are considerations which may affect the amount of the recovery, but cannot defeat the action. And in this connection it is proper to remark that had the instruction concerning the effect of the bad character of the plaintiff contained the correct rule of law, it would still, in view of the testimony on that subject, not have been error to refuse it. Three witnesses were examined by the defendant concerning tbe general reputation of the plaintiff, but only two of them gave testimony tending to impeach it, and both of these admitted that they had been at variance with the plaintiff. On the other hand thirteen witnesses, all or most of whom had known the plaintiff long and intimately, testified to his uniform good character. Amongst these we recognize the names of several of the oldest and most highly respected citizens of Green Bay, gentlemen well known to the people of the whole state as of most honorable character and repute. It is seldom that the good reputation of a person thus assailed is vouched for in a manner so satisfactory; and the court would not have gone far wrong had it instructed the jury that the attempted impeachment of the plaintiff’s reputation had failed.

Passing to another of the proposed instructions, there was no room for proof that the words spoken merely imputed to the plaintiff the killing of Nehill without criminality, because they unmistakeably impute murder and larceny or robbery. If the defendant used the words in a milder sense, he should have pleaded the fact in mitigation of damages.

As to the weight which ought to have been given to the testimony of the defendant. The jury are the judges of the credibility of the witnesses, the defendant included; and the court could not properly decide for them as to the weight of the defendant’s testimony, or that of any other witness in the case.

Under the pleadings it was not a question for the jury whether the killing of Nehill was a justifiable or a felonious homicide. The defendant did not aver in his answer the truth of the words spoken by him; and, failing to do so, he is precluded, by well settled rules of law, from proving that they were true. He is therefore in precisely the same position as though he had expressly admitted in his answer that such killing is not murder. Further, we held in Wilson v. Noonan, that extrinsic facts upon which the defendant relies to mitigate the damages, must be stated in the answer, or they will not be available to him. The answer does not aver that the killing of Nehill, if not murder, was manslaughter. Under the pleadings, all that the court could do was to submit it to the jury to say from the evidence whether, in view of all the circumstances, the defendant could honestly have believed, and whether he did believe, when he spoke the words, that the plaintiff had been guilty of the crimes charged against him. The court so instructed the jury in substance and effect, and properly refused to submit to them the question of the character of the homicide, whether justifiable or criminal.

A very considerable portion of the charge to the j ury was in strict accordance with the rules of law above stated, and that portion requires no further notice.

IV. We will now consider the alleged misconduct of the jurors. It satisfactorily appears, that whatever statements were made by the two jurors whose impartiality is assailed, concerning their -respective relations to the parties and to the case, were made after the verdict had been agreed upon and sealed, ready for delivery to the court. Nothing remained to be done by the •jury but to hand up the sealed verdict, which was done when the court convened the next morning, the same having been agreed upon and sealed after the adjournment of the preceding day. Indeed the alleged statement by one of those jurors (if made at all), must have been made after the verdict was returned and the jury discharged.

The idea that, after a verdict has been rendered, or after it has been agreed upon and sealed, ready to be rendered, any juror may invalidate and destroy it, and drive the court to the necessity of setting it aside and ordering a new trial of the action, merely by admitting that he was prejudiced against the losing party, cannot be entertained or tolerated for a moment. To so hold would be to place every verdict at the mercy of any juror who might be sufficiently corrupt or weak falsely to admit or state that he was not an impartial juror. Parties recovering verdicts do not bold them, and the rights which may accrue from them, by a tenure so frail and uncertain.

Of course, if it satisfactorily appear to the court that a juror who participated in the verdict was not a competent juror, the losing party not having waived the objection to such juror by laches or otherwise, the court should set aside the verdict and grant a new trial, if a motion therefor be made in due time. But the mere admission of the juror, after verdict, that he was not an impartial juror, does not prove that the juror vyas incompetent. At best it is but hearsay testimony, and is inadmissible to prove the fact of bias or prejudice. It may be otherwise, however, of declarations made before the trial, if made under circumstances which do not raise the presumption that there has been collusion between the juror and the losing party.

Y. There are several other objections (but of minor importance) to the rulings of the court. These can only-be considered very briefly. 1. The court refused to permit the defendant to show that the alleged slander had not affected injuriously the pecuniary credit of the plaintiff. The ruling was correct. 2. A witness for defendant who gave testimony tending to impeach the reputation of the plaintiff, admitted on cross examination that he had a difficulty with plaintiff growing out of what he termed “ the Bucklin affair.” The plaintiff afterwards testified, in explanation of such affair, that, at the instance of the witness, he went to Iowa in pursuit of one Bucklin, who was charged with a crime, and that the matter was arranged. To the question, ‘‘Did you compound that felony with Bucklin?” put on behalf of the defendant, the court sustained an objection. It was doubtless within the discretion of the court to permit the question to be answered or to rule it out, and no error can be assigned on the ruling, whether the same were for or against admitting the proposed testimony. 3. The plaintiff, when stating causes of difference between himself and the defendant (which was competent on the question of malice), testified as follows: “I saw Hageriy knock a boy down with a stick,” and further, that this was one cause of such trouble. The defendant moved ■to strike out the words above quoted, and the motion was denied. We think that this also was within the discretion of the court. And if the ruling was technically erroneous, it is difficult to perceive how the defendant could have been injured thereby. It is incredible that any jury could have been so stupid or so corrupt as to have increased the damages in this action because it had leaked out in the testimony that at some time, they knew not when, and under some provocation, they knew not what, the defendant had committed personal violence upon a boy. 4. The court held that the answer to each count or cause of action contained an admission that the defendant spoke the words, “ He murdered the manalso, that in respect to the words imputing larcenj^ or robbery to the plaintiff, no mitigating circumstances are "pleaded. We are of the opinion that the circuit court construed the answer correctly. But whether it did or not is not important, in view of the facts that the evidence of the speaking of the words complained of, as charged in the complaint, is uncontradicted, and the defendant was not prevented from proving any circumstance of mitigation.

We find no other exceptions which are deemed of sufficient importance to be stated. Upon the whole case we think that the judgment ought to be affirmed.

By the Court.— Judgment affirmed.