Barnes v. Brown

• Decision Date: 21 June 1878
• Court: Michigan Supreme Court
• Parties: James H. Brown v. Kezia A. Barnes

39 Mich. 211

James H. Brown v. Kezia A. Barnes

Supreme Court of Michigan

June 21, 1878

Submitted June 19, 1878

Error to Allegan.

Trespass on the case for slander. Defendant brings error.

Judgment affirmed with costs.

J. W & O. C. Ransom for plaintiff in error. Actionable words not counted on in a declaration for slander, are not admissible (Howard v. Sexton, 4 Comst. 157; Rundell v Butler, 7 Barb. 260; Campbell v. Butts, 3 Comst. 173; Keenholts v. Becker, 3 Den. 346; Thomas v. Croswell, 7 Johns. 264) unless to show malice, and not to enhance damages, Townshend on Slander § 390; Letton v. Young, 2 Metc. (Ky.), 558; Barrett v. Long, 8 Irish Law Rep., 331; Scott v. McKinnish, 15 Ala. 662; Burson v. Edwards, 1 Carter (Ind.), 164; but they cannot be proved unless uttered so long ago that a right of action on them would be barred, Brickett v. Davis, 21 Pick. 404; Throgmorton v. Davis, 4 Blackf. 174; Inman v. Foster, 8 Wend. 602; Lincoln v. Chrisman, 10 Leigh 338; and their admission then is improper as it in effect restores a cause of action that has been taken away, Root v. Loundes, 6 Hill 518; evidence of the repetition of a slander is not admissible to increase damages, Shortley v. Miller, 1 Smith, 395; Lanter v. M'Ewen, 8 Blackf. 495; Forbes v. Myers, 8 id. 74; Folkard's Starkie on Slander, § 586; Van Derveer v. Sutphin, 5 Ohio St., 293; damages in slander can not be affected by evidence of defendant's wealth (Ware v. Curtledge, 24 Ala. 622; Morris v. Barker, 4 Harring. 520) or poverty, Townshend on Slander, § 417; Myers v. Malcolm, 6 Hill 292; Palmer v. Haskins, 28 Barb. 90; any variance from the words actually spoken is fatal to an action for slander, Folkard's Starkie on Slander, 460, n. 19; Townshend on Slander, § 370; Olmsted v. Miller, 1 Wend. 506; Fox v. Vanderbeck, 5 Cow. 513; Taylor v. Moran, 4 Metc. (Ky.), 127; Zeig v Ort, 3 Chand. (Wis.), 26.

Littlejohn & Hart for defendant in error. In a declaration for slander it is enough to set forth the material words, and additional words which do not alter their sense may be omitted, Spencer v. McMasters, 16 Ill. 405.

OPINION

Campbell, C. J.

Mrs. Barnes sued Brown for slander, upon allegations that he had charged her in conversations referred to, with larceny and perjury.

The charges of larceny in the declaration referred to the theft of $ 160,--in one count alleged generally, and in another as taken from a coat pocket in Brown's house.

There was testimony of the various forms of the charge, and in some instances with additional particulars. It is objected that the words alleged must not only be proved exactly as laid, but proved without any additions. We do not understand that such additions can be regarded as producing a variance, unless in some way repugnant, or changing the sense. The slanderous words alleged being actionable in themselves cannot be made less so by other words not in any way altering their effect. There was no such difficulty here. No authority is shown for claiming the variance to be of any importance.

The testimony of a son of Mrs. Barnes was admitted against objection, to show that Brown had said to him that his mother, who was described by an opprobrious epithet, "stole some money from me" or "stole that money from me." It is not denied that repetitions of the same slander may be shown, but it is claimed this was a different slander. We think this was a repetition of the same slander, the essence of which consisted in the charge of theft, and that in the absence of anything to show Brown had ever charged her with stealing anything but the $ 160, may fairly be presumed to have referred to that specific charge. As we had occasion to review the doctrine concerning such repetitions in Leonard v. Pope, 27 Mich. 145, we need not discuss it here. But we do not understand that the proof of repetitions of the same slander means a verbatim repetition. The evidence is intended to show malice in repeating charges of a substantially similar nature, and calculated to produce the same impression on the community. In this case the charge of being a thief was the real mischief, and the testimony of the son went far enough to bring it within the rule of Leonard v. Pope.

Complaint is also made of the admission of a file of chancery records in a controversy between the parties in which the perjury set forth in the declaration was there stated as charged to have been committed. The error relied on is that this testimony was improper because no attempt was made to prove the slander as to that perjury.

Upon a careful examination of the record we do not find that when this testimony was introduced the count concerning the charge of perjury had been abandoned. That abandonment made this evidence immaterial, but it was not improper when offered and no motion was made...