Burckhalter v. Coward

• Decision Date: 24 January 1882
• Docket Number: CASE No. 1140.
• Citation: 16 S.C. 435
• Parties: BURCKHALTER v. COWARD.
• Court: South Carolina Supreme Court

16 S.C. 435

BURCKHALTER

v.COWARD.

CASE No. 1140.

Supreme Court of South Carolina.

Jan. 24th, 1882.

1. In action of slander the jury may give exemplary damages, and in fixing the amount of their verdict, may consider the pecuniary condition of the defendant.

2. While the defendant, under his plea of justification for the slander, must prove his charge to make the defense complete, the jury, in fixing their verdict, may take into consideration circumstances of aggravation or of mitigation.

3. In action of slander for words imputing a crime to plaintiff, the defendant, to support a plea of justification, must produce a record of conviction of the crime so imputed, or else show the plaintiff's guilt by evidence sufficient to convict him if on trial for such crime; otherwise, the jury must find for plaintiff. A mere preponderance of evidence is not sufficient to sustain the plea.

4. Where the plea of justification fails because unsupported by evidence, the jury, in estimating the damages, may consider this as a circumstance of aggravation and of continued and express malice.

5. To be entitled to the opening and reply, the defendant must fully admit the plaintiff's case, so that the verdict, in the absence of evidence, would be for the plaintiff. Hence, where the actionable words stated in a complaint for slander were admitted, but not to their full extent, and the malice charged was denied, the defendant is not entitled to open and reply.

6. And, it seems, that in all actions for unliquidated damages for personal injuries, libel and slander, the plaintiff opens and replies.

7. The defendant cannot challenge talesmen drawn in place of jurors removed by the challenges of the plaintiff. The right of challenge in civil cases is given by statute, and may be exercised only upon the jury as first empaneled.

Before KERSHAW, J., Aiken, September, 1881.

Action by Hudson B. Burckhalter against Thomas W. Coward, commenced in July, 1881. The plaintiff demanded judgment against the defendant for $5,000 damages for “false and defamatory words maliciously” spoken by defendant concerning the plaintiff, to wit, that plaintiff “had broken into a store between midnight and day, and stolen goods, and that defendant could and would prove that plaintiff had done so.” The answer admitted that defendant had said “that plaintiff had broken into a store in the night-time and stolen goods, and that he could and would prove that plaintiff had done so;” that defendant has been informed and believes that the plaintiff has been and is guilty of the charge; that all this was said “in full belief of its truth and verity, and not from any motive of malice towards the plaintiff.”

The evidence is not reported. The requests to charge, and other matters, are stated in the opinion of this court. The charge to the jury was as follows:

The words alleged by the plaintiff to have been spoken of him are substantially the same as those admitted by the defendant. They are words which impute a crime to the plaintiff, and, therefore, are actionable in themselves, without proof of special damage, and if the testimony has failed to prove their truth to your satisfaction, plaintiff is entitled to recover such damages as are, in your judgment, reasonable and proper under the circumstances. If, however, the testimony satisfies you that the charges made by defendant are true, by a clear preponderance of the proof, then your verdict must be for the defendant. The charge made is substantially the breaking and entering of the store, and the stealing of goods therefrom. To find for the defendant, it is necessary that you must be satisfied that the store in question was broken and entered by the plaintiff, and that goods of the character specified in the answer were taken by plaintiff under the circumstances alleged. The proof need not be beyond a reasonable doubt. It is sufficient that you be satisfied by the preponderance of the testimony, so that you believe the charge to be true. If the question of the truth or falsity of the words spoken remain so doubtful that you cannot decide it from the testimony, and it is left equally balanced in your mind, you must find for the plaintiff, because the burden of proof is upon the defendant, and he is bound to satisfy you affirmatively of the fact of the plaintiff's guilt of the charge he has made, or his defense fails. If you find for the plaintiff you must find such damages as you think, under the circumstances, he ought to have. The amount should be apportioned according to the infamy of the charges made, and the circumstances under which they were spoken. They should be sufficient to compensate the plaintiff for the injury done him, and to punish the defendant for his wrongful act, according to the degree of wrong of which you may find him to have been guilty under the circumstances. You will take into consideration any circumstances of excuse or mitigation which you may find to exist on the one hand, or of the evil purpose, malice and aggravation on the other, and find such amount as you think proper, having relation to the pecuniary condition of the defendant. In no case can you exceed the sum claimed in the complaint.

The verdict was for the defendant, and plaintiff appealed.

Mr. James Aldrich, for appellant.

Messrs. Henderson Bros., contra, cited, on the first exception, 2 Spears 418; 2 Rich. 184;15 S. C. 82, 443. 2d exception-5 Rich. 235; 1 Hill 251. 3d, 4th and 5th exceptions-60 Me. 209; 12 Bush 5;3 Hawks 63;5 Yerger 211;24 Ill. 566;9 N. H. 150;25 Id. 122. 7th exception-9 Rich. 426.

The opinion of the court was delivered by

MCGOWAN, A. J.

This was an action of slander. The case was called for trial, and was to be heard by jury No. 1, which was full. The plaintiff objected to two of the jurors peremptorily, and to one for cause. The three jurors were directed to leave the box, leaving nine upon the panel. Before the defendant exercised his right of challenge he requested the court to have the panel filled, which was done against the protest of the plaintiff. After the jury was thus filled up the defendant objected to two of the jurors who had been called as talesmen. They retired from the jury, which was filled up by a second drawing from the talesmen. The plaintiff excepted.

The defendant's answer contained a plea of justification-that he spoke the words substantially, but without malice. Upon the pleadings the defendant claimed that he was entitled to open and reply in evidence and argument, and the court so ruled. To which the plaintiff excepted.

The evidence being closed, the plaintiff requested the judge to make certain charges, which he refused. Under the charge the jury found a verdict for the defendant, and the plaintiff appeals to this court upon the following exceptions:

1. “That his Honor erred in overruling plaintiff's objection to the filling of the panel after plaintiff had peremptorily challenged two jurors and one for cause, and before defendant had exercised his right of challenge; and in allowing defendant to challenge jurors after the panel was filled from the talesmen; and in allowing defendant to challenge two of the talesmen drawn to fill the panel.

2. “That his Honor erred in allowing defendant, upon the pleadings, the right to the opening and reply in evidence and in argument.

3. “Because his Honor refused to charge as requested by plaintiff.

4. “Because his Honor erred in charging the jury that ‘if the testimony satisfies you that the charge made by the defendant is true by the clear preponderance of the proof, then your verdict must be for the defendant.’

5. “Because his Honor erred in charging that ‘the proof need not be beyond a reasonable doubt. It is sufficient that you be satisfied by the preponderance of the testimony, so that you believe the charge to be true.’

6. “Because his Honor erred in charging that ‘you will take into consideration any circumstances of excuse or mitigation which you may find to exist on the one hand, or of the evil purpose, malice and aggravation on the other.’

7. “Because his Honor erred in charging the jury that in fixing the amount of the verdict they could find such amount as they think proper, having relation to the pecuniary condition of the defendant.”

We will consider these exceptions in their reverse order.

As to the last. In actions of libel and slander, where the object of the plaintiff is to recover damages for aspersions cast upon him, the jury is authorized to give what is called exemplary or vindictive damages. The primary object in such cases is to obtain such a verdict as will compensate the plaintiff for the injury done him, and to operate as an example to others; but it is also allowable to add something by way of punishment to the defendant, and as the action sounds only in damages, a verdict which would punish a defendant of small means might be no punishment whatever to another of large fortune. According to our decided cases it was not error to charge the jury that in fixing the amount of the verdict they might consider the pecuniary condition of the defendant. The exact point was ruled in the case of Rowe v. Moses, 9 Rich. 426, where it is said by Judge O'Neale, in delivering the judgment of the court: “In my long experience as a lawyer and a judge I never knew an exception taken in actions for assault and battery, slander, malicious prosecutions, and malicious torts generally, to evidence of defendant's wealth; and if such proof could now be excluded as a measure of damage it would be in fact to reverse a course of justice coeval with the administration of it by the courts in this State.”

The sixth exception complains that it was error to charge that the jury might take into consideration any circumstances of excuse or mitigation on the one hand, or of evil purpose, malice and exaggeration on the other. It is true that when the plea of justification is entered in an action of slander there is no complete defense except...