Zeliff v. Jennings

• Decision Date: 29 April 1884
• Docket Number: Case No. 4973.
• Citation: 61 Tex. 458
• Parties: D. P. ZELIFF v. SUE M. JENNINGS.
• Court: Texas Supreme Court

61 Tex. 458

D. P. ZELIFF

v.SUE M. JENNINGS.

Case No. 4973.

Supreme Court of Texas.

Apr. 29, 1884.

APPEAL from Collin. Tried below before R. De Armond, Esq., special judge.

Suit for slander, brought by appellee May 31, 1880. First and second amended original petitions filed January 16, 1882, and June 25, 1883, charging appellant, Deliza Zeliff, wife of D. P. Zeliff, on the _____ day of May, 1880, and at divers times previous thereto, with uttering, publishing and circulating certain words charging her with unchastity; and in the second amended petition, charging her with intending to convey the impression, by the words originally set forth, that appellee had been guilty of the crimes of adultery and fornication, and alleged as special damages dejection of mind, enfeebled body, inability to labor, expense of suit, loss of companionship of friends, rejection by society, damage to name, fame and credit. Aggregate damages claimed, $11,000. Appellants answered by general demurrer, general denial, plea of not guilty and statute of limitations. Verdict and judgment, June 29, 1883, in favor of plaintiff for $2,600.

The second assignment of error was: The court erred in overruling defendant's special exceptions to said (second) amended petition, because the same sets up an entirely new cause of action from that alleged in the original petition filed herein on May 31, 1880, and amendment, January 16, 1882, and the cause of action is barred by the statute of limitations.

The allegations in the original petition, filed May 31, 1880, were as follows: First count: “That on or about the ____ day of May, 1880, defendant, Deliza Zeliff, maliciously contriving to injure and defame the plaintiff in her good name and reputation, did, in the presence of divers good people of this state, publicly speak, utter, repeat and circulate the following false, malicious and scandalous words of and concerning the plaintiff, to wit: She (meaning plaintiff) was kept (meaning kept as a mistress or lewd woman) all last year by the son of a widow woman who lived near Jennings' (meaning Jennings, plaintiff's father).” Second count: “That on or about the ____ day of May, 1880, defendant, Deliza Zeliff, maliciously contriving to injure plaintiff in her good name and reputation, did, in the presence of divers good people of this state, publicly speak, utter, repeat and circulate the following false, malicious, base and scandalous words, to wit: The woman (meaning a woman named Bettie Lyons, of notoriously unchaste and lewd character) who lived last year in the house where Jennings lives (meaning the house where plaintiff then resided, and now resides with her father, Jennings), on the night the crib was burned (meaning a crib belonging to defendant, D. P. Zeliff), went back with the boys, one at a time, to the brush, and we have now another in the same house just like her (meaning the plaintiff), and that she was of like lewd and unchaste character with said Bettie Lyons.”

June 25, 1883, the plaintiff filed a second amended petition charging that plaintiff is a virgin and unmarried. “That on or about the ____ day of May, 1880, and divers times previous thereto, defendant, Deliza Zeliff, contriving to injure,” etc. (continues the same as the original down to the first count, except the allegations that the words were spoken in the presence of Wm. Ray), to wit: “You boys have been in the habit of going over to Bettie Lyons' to get a little” (meaning thereby to have carnal intercourse with the said Bettie Lyons). And further: “Did not Charles Davis keep you fellows horned off and got it all to himself?” (meaning to ask thereby if the said Davis had not endeavored to keep the said Bettie Lyons for his own exclusive use as a lewd woman); and further: “Did you see her (meaning the said Bettie Lyons) go off with Rube Baker on the night the crib was burned (meaning corn crib belonging to defendant), to the brush?” (meaning the said Bettie Lyons accompanied the said Rube Baker to the brush on the night the said crib was burned for lewd purposes); and further: “We have got another woman in the same house just like that girl” (meaning the aforesaid Bettie Lyons), and meaning thereby that plaintiff was a lewd woman and would prostitute her person with men, and that she had been guilty of adultery and fornication; and added, “You might go over, and you might get something from old man Jennings' girl” (meaning that the said William Ray should go to the house where plaintiff lived and might have carnal intercourse with her); and further, “I am afraid of her” (meaning plaintiff). “She (meaning plaintiff) is a base woman.” And further, “she (meaning plaintiff) was kept all last year by the son of a widow.” And continued as in first count in original petition down to the following allegation, to wit: “And was guilty in conjunction with said man of the crime of adultery and fornication.”

The testimony of the witnesses disclosed the use of language by appellant, subsequent to that charged, of the same import--imputing a want of chastity,-- an action upon which was at the time of trial barred by limitation.

The first charge refused was as follows: “Words charging a woman with unchastity, as alleged in plaintiff's petition, are not of themselves actionable; and in order that plaintiff recover against defendants, the testimony introduced must be sufficient to satisfy your minds that the words therein charged were uttered, spoken and published by the defendant, Deliza Zeliff, as alleged, or some one or more of them constituting in themselves a slander, and that said words so uttered, spoken and published, were so uttered, spoken and published of and concerning the plaintiff in this suit, and with the intent to injure her character, and were so understood at the time by those to whom the same were spoken, and in consequence of the uttering, speaking and publishing thereof plaintiff has sustained loss and been damaged.” The fourth charge refused was as follows: “If you should believe from the evidence that the defamatory words charged to have been uttered and published of and concerning plaintiff's character were so uttered and published with the intent to injure plaintiff, but that plaintiff has not sustained any loss or damage in consequence thereof, then you will find for defendants.”

The second charge asked and refused was as follows: “The damages sustained by plaintiff must be the immediate and proximate result of the defamatory words charged to have been uttered, spoken and published and proven upon the trial.” Third charge: “Plaintiff cannot recover damages on account of her wounded feelings nor enfeebled health, and incapacity to perform labor, but the loss sustained by her must be to her reputation and sustained through the conduct of others.”

The following was one of the charges excepted to: “The plaintiff can only recover for the language charged in her petition as having been spoken concerning her; but you may take into consideration other slanderous statements made by defendant Deliza Zeliff, if any, as evidence of malice and in aggravation of, and for the purpose of increasing, the amount of damages. If the language charged to have been spoken, or any part of it, constitutes a charge of the offense of either adultery or fornication against the plaintiff according to the definition of those offenses as above set out, then the law presumes that the words were spoken maliciously.”

The character of the other charges refused or excepted to will be understood from the opinion.

The jury first returned into open court the following verdict: “We, the jury, find for the plaintiff actual damages, $2,500; also pecuniary damages, $100; (signed) J. Woodall, foreman;” and were asked by the court if they agreed to this verdict, to which they replied they did; and thereupon one of plaintiff's counsel suggested in the hearing of the jury that only $1,000 was claimed in the petition as actual damages, and that the verdict of the jury was a mistake, and possibly the result of a misconception of the charge on punitory damages. Thereupon the court explained the difference between punitory and actual damages; and in answer to questions by the court, the foreman said that the $2,500 was actual damages, and the $100 for loss of health and inability to labor. The court then instructed that if they desired they could return and reform their verdict, which they did, and brought into open court the following verdict:

“We, the jury, find for the plaintiff, and assess the damages, actual and vindictive, at $2,600 (twenty-six hundred dollars).

+-------------------------------+
                ¦(Signed)¦J. WOODALL, Foreman.” ¦
                +-------------------------------+
                

They were then, after reading the verdict by the clerk, asked by the court if they agreed to this verdict, and answered they did, and were discharged by the court, but remained in the court room, and again recalled at the request of plaintiff's counsel, the judge telling them that the order discharging them was revoked, and their verdict was again reformed so as to read as follows:

“We, the jury, find for the plaintiff, and assess the damages at $100 actual damages; also vindictive or punitory damages at $2,500.

+-------------------------------+
                ¦(Signed)¦J. WOODALL, Foreman.” ¦
                +-------------------------------+
                

Throckmorton & Brown, for appellants, on limitation cited: R. C., art. 3202, sec. 2; Townshend on Slander, secs. 325, 364, 365 and 369; 12 Am. Dec., 244.

On alleged error in admitting evidence of words spoken after suit brought, they cited: Townshend on Slander (2d ed.), p. 601, notes 4, 5 and 6; sec. 392, note 3; sec. 395, note 4; Sutherland on Damages, vol. 3, pp. 649 and 650, notes 1 and 4; Sedgw. on Meas. Damages (6th ed.), pp. 115 and 116, bottom and top of page; Abbott's Trial Ev., p. 666.

On the suit being for words not per se actionable, they cited: Townshend on Slander, secs. 146, 147, 197, note 5; sec. 198, note...