Bedtkey v. Bedtkey

• Decision Date: 12 February 1902
• Citation: 15 S.D. 310,89 N.W. 479
• Parties: BEDTKEY v. BEDTKEY.
• Court: South Dakota Supreme Court

15 S.D. 310

89 N.W. 479

BEDTKEY

v.BEDTKEY.

Supreme Court of South Dakota.

Feb. 12, 1902.

Appeal from circuit court, McCook county.

Action by Helen Bedtkey against Edward Bedtkey. From a judgment for plaintiff, defendant appeals. Affirmed.Frank Van Wagenen and M. A. Butterfield, for appellant. E. H. Wilson, for respondent.

FULLER, J.

In this suit for slander, defamatory matter actionable per se is charged in the complaint as having been spoken by appellant of and concerning respondent, while the evidence admitted without objection shows that he spoke the words to her in the presence and hearing of third persons familiar with the language employed. In the coarsest terms known to the densely illiterate, he accused her of being a common thief, an adulteress, and a prostitute of the most detestable character. If true, the imputations are such that respondent is guilty of several distinct crimes punishable by imprisonment in the penitentiary. It being well settled that proof of special damage is unnecessary where the complainant is charged with an offense for which he may be indicted and punished, the court very properly overruled appellant's motion to direct a verdict in his favor on the ground that respondent had failed to show injury by reason of the defamatory matter. While it is enough to obviate the necessity of proving special damages if the offense be a crime or misdemeanor involving moral turpitude, it was shown by the undisputed evidence in this case that respondent suffered injury in consequence of the words falsely spoken. Moreover, this evidence of injury to feelings having been admitted without objection, damages therefore are recoverable. Jackson v. Bell, 5 S. D. 257, 58 N. W. 671.

It is also urged, for the first time in this court, that a verdict should have been directed for appellant on account of the variance between the pleading and the proof; but the general rule consistent with such contention and the decisions cited in its support are not controlling in this state, or even influential, unless the adverse party has been actually misled to his prejudice, and the record contains no intimation that such is this case. Our statute abrogating the general rule that the plaintiff must fail unless the allegations of his complaint and the proof correspond is as follows: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually so misled the adverse party to his prejudice, in maintaining his action or defense, upon the merits. Whenever it shall be alleged that a party has been misled, the fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.” Comp. Laws, § 4934. In states having a similar statute it is held, in actions for slander, that a variance, in order to be material, must substantially mislead or prejudice the adverse party, which fact must be shown to the satisfaction of the court. Townsh. Sland. & L. § 363.

Appellant is the father-in-law of respondent, and on cross-examination she was asked if there was not at the time of the trial an action for divorce pending between herself and her husband; and the sustaining of an objection to this question on the ground that the same was not proper cross-examination is not reversible error. As the subject was in no manner touched upon in the direct...