Gatewood v. Garrett

• Decision Date: 07 February 1907
• Citation: 106 Va. 552,56 S.E. 335
• Parties: GATEWOOD. v. GARRETT.
• Court: Virginia Supreme Court

106 Va. 552

56 S.E. 335

GATEWOOD.

v.GARRETT.

Supreme Court of Appeals of Virginia.

Feb.7, 1907.

1. Writ of Error—Record—Bill of Exceptions—Review.

Where the evidence is not made a part of the record by a bill of exceptions, questions depending on the evidence cannot be considered.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2433.]

2. Slander—Privileged Communications-Liability.

Where the occasion was privileged, a person is not liable for slander, unless he misused the occasion by gratifying his malice; the presumption being that he believed the statement made by him to be true.

3. Writ of Error—Review—Estoppel.

A party who has asked for instructions predicated on the existence of certain evidence is estopped from denying the existence thereof in determining whether it was error to refuse a requested instruction predicated on such evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3591-3604.]

4. Slander—Instructions.

Where, in slander, the instructions requested by plaintiff contained expressions recognizing the law with respect to privileged communications, but the instructions were framed so as to magnify plaintiff's theory of the case, the refusal to charge that plaintiff, to recover, had the burden of proving that the slanderous words were spoken with actual malice, was erroneous.

5. Same — Privileged Communications — Criticism of Public Officers — Instructions.

In an action for slander, based on a criticism of the conduct of a police officer made to the mayor of the town, the refusal to charge that the conduct of the public officers is open to public criticism, and that whoever fills a public office renders himself open to public discussion, and if any of his acts are wrong he must accept the attack as a necessary circumstance attaching to his position, and that it is not only the right, but the duty, of a citizen to make complaint of any misconduct on the part of officials to those charged with supervision over them, is reversible error.

Error to Circuit Court, King William County.

Action by James L. Garrett against W. K. Gatewood. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

H. I. Lewis and G. P. Haw, for plaintiff in error.

Isaac Diggs and H. R. Pollard, for defendant In error.

HARRISON, J. This action was brought by James L Garrett to recover of the defendant, W. K. Gatewood, damages for the alleged use by him of certain words, charged by the plaintiff to have been slanderous, and to have affected him injuriously in the position of policeman, which was then held by him in the town of West Point.

The declaration names three persons, one of them the mayor of the town, in whose presence the words complained of were uttered. The gravamen of the complaint is that the plaintiff lost his position as policeman by reason of the words alleged to have been spoken by the defendant. The words complained of are stated in the declaration to be as follows: That the defendant, in speaking of the plaintiff, said: "He is no account." "He Is always at home asleep." "I am prepared to prove It, " "There is something rotten about It"

These words are not, in themselves, actionable. To become so, it must be shown that they were uttered with a malicious purpose to injure the plaintiff in connection with his office of policeman. This is not controverted.

The evidence adduced at the trial was not made part of the record by proper bill of exceptions, and therefore none of the questions raised which depend upon such evidence can be considered.

Bill of exceptions No. 5 was to the action of the circuit court in refusing to give two instructions asked for by the defendant. The first of these instructions was as follows:

"(1) If the jury believe from the evidence that the defendant spoke the words, or any of them, as charged In the declaration, of and concerning the plaintiff, yet the presumption of law is that he spoke them honestly, believing in the truth of his statement, although such statements in fact were false or founded upon the most erroneous information; and, in order for the plaintiff to recover in this action, the burden is upon him to prove to your satisfaction that such statements were spoken with actual malice in fact towards the defendant."

It is not denied that this is a correct statement of the law. The occasion was privileged,...