Farnan v. Childs
| Decision Date | 31 January 1873 |
| Citation | 66 Ill. 544,1873 WL 8108 |
| Parties | JAMES FARNANv.CHARLES J. CHILDS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Randolph county; the Hon. SILAS L. BRYAN, Judge, presiding.
This was an action on the case, by Charles J. Childs against James Farnan, for slander. The defendant pleaded the general issue, and several pleas justifying the speaking of the words charged in the several counts of the declaration. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $475. The defendant appealed.
Mr. WM. H. UNDERWOOD, and Mr. JOHN MICHAN, for the plaintiff in error.
Mr. J. BLACKBURN JONES, for the defendant in error. Mr. JUSTICE SCOTT delivered the opinion of the Court:
The only error deemed material to be considered, is, that which arises on the instructions given for plaintiff in the court below.
The fourth and eighth instructions assume that defendant was guilty of speaking the words alleged in the declaration.
In this respect they are objectionable. Dunham v. Goodwin, 54 Ill. 469.
The fourth instruction, in which the jury were told they might “consider the reiteration of the slander at different times and to different persons, in estimating and fixing the damages,” should have been qualified, by telling them if they believed, from the evidence, the slanderous words had been reiterated at different times and to different persons. In the form in which the instruction was given, the jury were left no alternative but to find defendant guilty and assess plaintiff's damages for the reiteration of the slander. The court, in giving both of these instructions, invaded the province of the jury. They ought to have been left free to find the facts, without any suggestions from the court as to what had or had not been proven.
The serious question in the case arises upon the ninth instruction, which is as follows: “The court instructs the jury, that if defendant has filed pleas justifying the speaking of the words charging plaintiff with having seduced divers and sundry other girls, and made no effort to prove the same, the jury may take that fact in consideration in aggravation of damages.”
Defendant filed the plea of not guilty and several pleas of justification, and among others, one justifying the speaking of the words charging plaintiff with having seduced “divers and sundry girls in his office,” but there is no evidence in the record that defendant ever spoke the objectionable words, for which reason it is urged the instruction was erroneous, because the jury were told if defendant made no effort to prove the truth of his plea, that fact should be taken into consideration in aggravation of damages. The ground of the objection is, defendant was not bound to prove the truth of his plea until plaintiff had proven that he had spoken the slanderous words. On the contrary, it is urged, that the plea itself is a solemn admission, on the record, defendant had spoken the words, and plaintiff was not...
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