Hawver v. Hawver
| Decision Date | 30 September 1875 |
| Citation | 78 Ill. 412,1875 WL 8501 |
| Parties | PETER D. HAWVER.v.HENRIETTA HAWVER |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McHenry county; the Hon. THEODORE D. MURPHY, Judge, presiding.
Mr. JOHN B. LYON, and Messrs. BENNETT & SALE, for the appellant.
Mr. B. N. SMITH, Mr. A. B. COON, and Mr. J. P. CHEEVER, for the appellee. Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:
This action was brought for slander. Defendant accused plaintiff of being an unchaste woman. The trouble between them seems to have grown out of family difficulties. Plaintiff is the daughter-in-law of defendant. On the trial, she recovered a judgment, and defendant brings the case to this court on appeal.
Numerous errors have been assigned, but, as the judgment must be reversed for causes occurring on the trial, which are not of a conclusive character, we do not deem it proper, at this time, to discuss the merits of the case.
With the plea of not guilty, defendant filed a plea of justification, and, on the trial, offered some evidence to support it. The court, at the instance of plaintiff, instructed the jury that if defendant failed to establish the truth of the slanderous words set forth in the plea, by a fair preponderance of the evidence, and, at the time of filing the plea of justification, did not file it with a belief it was true, and that he could prove it, then the filing of such a plea is a repetition of the slander, and, consequently, conclusively proves malice on the part of defendant. This is stating the rule of law on this subject too broadly. The fact a party, in an action for slander, may fail to establish the truth of his plea of justification by a preponderance of proof, is not of itself conclusive evidence of malice. It is sufficient if he believed it was true, although he may have been unable to prove it, or that the evidence offered for that purpose was insufficient. Our statute on this subject is, in actions for slander or libel, an unproved allegation of the truth of the matter charged shall not be deemed proof of malice, unless the jury, on the whole case, find the defense was made with malicious intent. R. S. 1874, p. 992, section 3.
It will be perceived the instruction is much broader than the law will warrant. Evidence was offered by defendant to sustain his plea. It may not have been sustained by a preponderance of the proof, but that fact is by no means conclusive evidence of malice. It is only where it shall appear, from the whole case, the defense was made with a malicious intent, it shall be deemed proof of malice. Even then it is not conclusive proof. It is simply proof of malice.
Under the facts of this case, the instruction was calculated to mislead the jury, and it was error in the court to give it.
There was no error in refusing...
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