Sullivan v. Sullivan

Opinion

by the Court.

This was an action for slander. Trial by jury. Yerdict and judgment for defendant. Appeal to this court by plaintiff.

There was some conflict as to whether the actionable words alleged in the declaration were actually spoken by the defendant, and while it seems that the weight of evidence is with the plaintiff on this point, yet it may be the jury had sufficient reason for giving the greater credit to the defendant’s testimony.

But we presume from all the abstract discloses that the case turned upon another point, which was that the persons who were present at the time of the alleged speaking of the slanderous words did not know the import and meaning of the same. These persons were the three young children of the plaintiff. They testify positively to the speaking of the words, but they say just as positively that they did not understand then, or at the time of the trail, what the words meant.

If this was so, then it was as though the words were in an unknown tongue, or the presence of persons devoid of the sense of hearing, or to the plaintiff alone, no others being present, in all of Avhich cases there is no ground of action. This, because the essence of the injury, is the effect created by the slander upon the minds of the hearers. Fleetwood v. Curly, Hobart Reports, 267; Townshend on Slander and Libel, Secs. 95, 96 and 97; Starkie on Slander, Vol. 2, 52; Nelson v. Borchenius, 52 Ill. 236.

The action of the court in giving and modifying instructions on this point was correct and the errors assigned in reference thereto must be overruled. If the persons present did not understand the Avords and did not repeat them to others there was no publication in the legal sense. Some objection is made as to the ruling of the court in refusing to allow certain questions to be put to the Avitness Jerry Sullivan. Only two questions are involved. When the first was propounded counsel for defendant objected, and Avithout waiting for a ruling by the court, propounded the second, to which objection was also interposed and sustained.

We think no error was committed therein. The questions were both leading and objectionable for that reason, especially when put to a young person, the child of the plaintiff. The second question was objectionable also in the assumption it contained, that the Avitness understood the words to have the meaning suggested by the question, and that such meaning was in effect slanderous.

It would have been easy enough to frame the questions properly, and we are not disposed to say that the court was too strict in the matter, under the circumstances.

It is objected also, that evidence was admitted as to the general character of the plaintiff without limiting the proof to the time of the alleged slander.

We find no objection on this ground interposed at the time. There was a general objection, Avhich the court overruled, and to this no exception was saved. The evidence, Avhile not in terms confined to the particular time when the words were alleged to have been spoken, evidently refers to that time, though the present tense was frequently used in both question and answer, not only in the examination in chief but also iu. the cross examination. Such an objection should have been specifically made. It is evidently an afterthought. Finding no errors of any importance, we must affirm the judgment.