Ranson v. McCurley

• Decision Date: 11 May 1892
• Citation: 140 Ill. 626,31 N.E. 119
• Parties: RANSON v. McCURLEY.
• Court: Illinois Supreme Court

140 Ill. 626

31 N.E. 119

RANSON

v.McCURLEY.¹

Supreme Court of Illinois.

May 11, 1892.

Error to appellate court, third district

Action by Mary E. McCurley against Samuel E. Ranson, for slander. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant brings error. Affirmed.

SCHOLFIELD AND CRAIG, JJ., dissenting.

Geo. W. Smith and Felix D. McAvoy, for plaintiff in error.

Oscar A. De Leuw and Morrison & Whitlock, for defendant in error.

SHOPE, J.

This is an action for slander, in which the plaintiff recovered $3,000 damages. On appeal to the appellate court the judgment was affirmed, and the defendant below prosecutes this writ of error.

The first point made is that there is material variance between the allegations of the declarations and proofs. We are of opinion that it is too late to avail of error in that regard, if it exists. The declaration in varying language set out the alleged slander, with proper inducement and innuendoes, imputing that the plaintiff, an unmarried woman, was pregnant, and guilty of fornication. To charge an unmarried woman with being pregnant is necessarily to impute fornication. If words are used, uttered, or published falsely, which in their ordinary or common acceptation amount to a charge of fornication, or if the person speaking intends that the hearers shall understand, and they do understand, fornication to be imputed, the words are slanderous and actionable. Section 1, c. 126, Rev. St.; Barnes v. Hamon, 71 Ill. 609;Schmisseur v. Kreilich, 92 Ill. 347. It is not contended that the evidence does not show the uttering and publication of words charging that the plaintiff was pregnant, and others that per se charge her with being guilty of fornication, but it is insisted that the words laid in the declaration, or enough of them to amount to such charge, are not proved. That there was, therefore, a variance between the allegations and proof. It is well settled that to authorize a recovery in an action for slander the words laid in the declaration, or enough of them to charge the particular offense alleged to have been imputed, must be proved substantially as charged. Evidence of the speaking of equivalent words, although having the same import and meaning, is not admissible. And words spoken interrogatively are not admissible to sustain an allegation of words spoken affirmatively. Sanford v. Gaddis, 15 Ill. 228;Wilborn v. Odell, 29 Ill. 457; Schmisseur v. Kreilich, supra. These rules are highly technical, and were, as said in the Wilborn Case, supra, no doubt introduced because of the disfavor with which actions for slander were regarded by the courts, and to discourage that species of litigation. They are, however, rules of evidence merely, and, like other rules of evidence, may be dispensed with or waived by the parties by express stipulation, or by conduct inconsistent with the right to insist upon an enforcement of the rule. In the case at bar, the defendant sat by, and permitted all of the evidence tending to show the uttering and publishing of the slanderous words to go to the jury without objection. The trial court was not, by objection to the evidence, or an instruction in the nature of a demurrer to it, called upon to pass in any way upon its competency or admissibility. If the objection was that the evidence was inadmissible, it would manifestly be too late to object on appeal. The rules governing the admission of evidence are familiar, and require that objection be interposed when it is offered, otherwise error cannot be predicated on its admission. It was early held in this state, and has been since uniformly followed, that improper evidence should be excepted to on the trial; otherwise it will be presumed to have been received by consent. Snyder v. Laframboise, Breese, 343; Transportation Co. v. Joesting, 89 Ill. 152;Schill v. Reisdorf, 88 Ill. 411. The objection, however, is, as before stated, that there is a variance between the allegations and the proof. By the instructions for plaintiff the jury was told that, if they found from the evidence that the defendant had uttered and published the slanderous words charged in the declaration, etc., as therein alleged, etc., they should find the defendant guilty. By the fifth, given at the instance of the defendant, they were instructed that to maintain her case plaintiff ‘must prove the words substantially as charged;’ ‘that proof of equivalent words or expressions will not suffice; nor is it sufficient to prove that the words were spoken in an interrogative form,’ nor ‘that defendant said he had heard the alleged slanderous matter,’ etc. The eighth instruction, given for defendant, sets forth the various words in which the slander is charged in the declaration, and instructs the jury that it is incumbent on the plaintiff to show by a preponderance of the evidence ‘that the defendant did use substantially one or more of said set of words, as charged in the declaration,’ etc. And the second of defendant's series is to like effect. Instead, therefore, of moving to exclude the evidence, or moving for a nonsuit, or asking an instruction in the nature of a demurrer to the evidence, as he might have done on a failure of proof, the court, at his instance, submitted to the jury, to be found from the evidence as a fact, whether the averments of the declaration were proved. They found adversely to defendant, and the approval of that finding by the trial and the appellate courts is conclusive of the fact. That a party cannot complain of an error committed at his own instance is too familiar to require the citation of authorities. The defendant, having required no ruling by the court upon the evidence, and invited its submission to the jury, should not be permitted to complain of the error, if error there was, in submitting the case, but should be held to have waived his right to insist upon the strict rule of law now sought to be invoked. Especially should this be so where, as in this state, the parties may amend their pleading in form or substance, upon such terms as may be just and reasonable, and thereby the expense of another trial be saved to the litigants, and the transaction of the business of the courts facilitated.

In Jones v. Fales, 4 Mass. 245, PARSONS, C. J., after holding that, if the defendant had objected to the evidence at the trial, the objection must have prevailed, says: ‘But I am strongly inclined to the opinion that objection to the evidence, as not comporting with the declaration, ought not generally to be admitted, unless objection be made at the trial, and the point reserved. A contrary practice would introduce much mischief.’ See, also, State v. Burnett, 81 Mo. 120, where it was held that ‘it was too late to raise either objection or exception, in regard to improper evidence, for the first time on the motion for a new trial.’ To the same effect is State v. Peak, 85 Mo. 191. Nichols v. Hayes, 13 Conn. 155, was an action for slander, and it was objected that there was a variance between the proof and the declaration, and it was held that, the evidence not having been objected to on the trial, it came too late on the motion for a new trial. See, also, Hayden v. Nott, 9 Conn. 367. In the case at bar, had attention of court or counsel been called to the fact that it was to be urged anywhere that there was not sufficient evidence of the publication of the words alleged, the question could have been put beyond controversy by a slight amendment; and that, too, without surprise to the defendant. The witnesses, in some instances, as is usual, in detailing the statements of the defendant, used the verb in the past tense, instead of the present, as charged in the declaration. By changing the form of the verb in the declaration, or going further, and inserting, with proper innuendoes, the words proved, which we held in Elam v. Badger, 23 Ill. 498, to per se amount...