Hewett v. Samuels

• Decision Date: 03 November 1928
• Docket Number: 5077
• Citation: 46 Idaho 792,272 P. 703
• Parties: JAMES HEWETT and NELLIE HEWETT, Respondents, v. MRS. H. F. SAMUELS, Appellant
• Court: Idaho Supreme Court

272 P. 703

46 Idaho 792

JAMES HEWETT and NELLIE HEWETT, Respondents, v. MRS. H. F. SAMUELS, Appellant

No. 5077

Supreme Court of Idaho

November 3, 1928

APPEAL AND ERROR-BILL OF PARTICULARS-INADVERTENT OMISSION OF NAMES-LIBEL AND SLANDER-DAMAGE-COMPENSATORY-EXEMPLARY-INSTRUCTIONS.

1. Where plaintiff, in complaint for slander not stating names of persons to whom slanderous statements were made, filed bill of particulars containing name of one B., and second bill of particulars inadvertently omitting such name, and additional bill of particulars containing name, no prejudice was shown because name was omitted from second bill, and trial court properly admitted testimony of B.

2. Instruction in action for slander charging that if statements were made maliciously and wantonly "in addition to real or compensatory damages suffered, jury is at liberty to assess also exemplary damages," was sufficient to instruct jury that exemplary damages could be found only if actual damages were first found.

3. Instruction in action for slander authorizing exemplary damages if statements were made "maliciously" and "wantonly" was sufficiently synonymous with requirement of wilful fraud, malice or gross negligence to remove instruction from field of error.

4. In action by school-teacher to recover damages for slanderous statements charging her with immoral acts with men, which if true constituted crime, verdict of $4,750 actual and exemplary damages was unwarranted by evidence that teacher did not again apply for school where she had been teaching and should be reduced to $2,000.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. W. F. McNaughton, Judge.

Action for slander. Judgment modified and affirmed in reduced amount.

No costs awarded.

E. W Wheelan, for Appellant.

Where the complaint in an action for slander does not furnish information as to the time, place or party to whom the alleged slanderous statements are made, the defendant is entitled to a bill of particulars giving such information. (Irwin v. Taubman, 30 S.D. 502, Ann. Cas. 1915C 1263, 139 N.W. 115; 31 Cyc. 565; 21 R. C. L. 480, 481; Columbia Accident Assn. v. Rockey, 93 Va. 678, 25 S.E. 1009.)

A bill of particulars when served and filed becomes part of the complaint. (21 R. C. L. 481; Chapman v. Bent, 6 Cal Unrep. 740, 65 P. 959.)

Any part of a cause of action omitted from a bill of particulars served and filed is abandoned or waived. (McKinnie v. Lane, 230 Ill. 544, 120 Am. St. 338, 82 N.E. 878.)

Exemplary damages cannot be recovered without proof of actual damages. (17 C. J. 974; Barnard v. Cohen, 165 Wis. 417, 162 N.W. 480.)

Exemplary damages can only be recovered in case of proof of actual malice. (37 C. J. 125; Philadelphia etc. R. Co. v. Quigley, 62 U.S. (21 How.) 202, 16 L.Ed. 73; Astruc v. Star Co., 182 F. 705; reversed on other grounds, 193 F. 631, 113 C. C. A. 499, 40 L. R. A., N. S., 79; Broughton v. McGrew, 39 F. 672, 5 L. R. A. 406; Davis v. Hearst, 160 Cal. 143, 116 P. 530; Hearne v. DeYoung, 132 Cal. 357, 64 P. 576; Longsworth v. Curson, 56 Cal.App. 489, 206 P. 779; Wright v. Baldwin, 47 Cal.App. 147, 190 P. 377; Republican Pub. Co. v. Conroy, 5 Colo. App. 262, 38 P. 423; Driessel v. Urkart, 147 Wis. 154, 132 N.W. 894, 36 L. R. A., N. S., 146; Reed v. Keith, 99 Wis. 672, 75 N.W. 392; Unifried v. Libert, 20 Idaho 708, 119 P. 885.)

Myrvin Davis, for Respondents.

In permitting the witness Brown to testify there was no abuse of discretion. (See Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789; Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; Watkins v. Lord, 31 Idaho 352, 171 P. 1133; McCarthy v. Mt. Tecarte Land & Water Co., 110 Cal. 687, 43 P. 391; Silva v. Bair, 141 Cal. 599, 75 P. 162.)

In Miller v. Mullan, supra, the court says: "Without deciding in this case as to whether or not an action for tort falls within the provisions of sec. 4209, R. C., we are content to rest our decision sustaining the action of the trial court on the proposition that this provision of the statute is not mandatory but directory. In our opinion the matter rests in the sound discretion of the trial court as to whether or not he will inflict the extreme penalty of the act on the guilty party and exclude all evidence on the claim."

In McCarthy v. Mt. Tecarte Land & Water Co., supra, the court say: "When a bill of particulars is objectionable, and defendant intends to object to the introduction of evidence, he must, before the trial, move for an order to exclude it."

In Silva v. Bair, supra, the court say: "Where a bill of particulars was not served within the five days, but it was served over a month before the trial and no objection was made to it on the ground that it was too general or defective, it was not an abuse of discretion to not to exclude evidence under the bill."

Court will not interfere with the verdict on ground of excessive damages, unless it is satisfied that the verdict is the result of gross error, prejudices, perverseness or corruption. (17 R. C. L. 444.)

A verdict will not be set aside merely because it is large, or because in excess of what the court thinks proper. (17 R. C. L. 444.)

The amount of damages rests in the sound discretion of the jury. (25 Cyc. 530.)

According to the great weight of authority, exemplary, punitive or vindictive damages may be awarded in actions for libel and slander where it appears that the defendant acted maliciously in making the publication. (17 R. C. L. 441.)

If expressed malice on the part of defendant is shown, exemplary or punitive damages are proper. (25 Cyc. 536.)

In most jurisdictions, exemplary, punitive or vindictive damages are recoverable in actions for defamation of character. (25 Cyc. 536.)

GIVENS, J. Wm. E. Lee, C. J., and Hartson, D. J., concur. BUDGE and TAYLOR, JJ., Dissenting.

OPINION

GIVENS, J.

Respondent recovered a judgment against appellant, a resident in the school district in which respondent was teaching, for undifferentiated actual and exemplary damages for slander. Several slanderous statements were alleged, but the only one concerning which evidence was offered involved immoral acts with men.

The complaint not stating the persons to whom or the times when the alleged slanderous statements were made, upon request, a bill of particulars was ordered. The first bill contained the name of one C. B. Brown. The appellant contending that the bill was insufficient, a second was filed from which the name of Brown was omitted, inadvertently according to respondent. On December 20, 1926, an additional bill containing the name of Brown was filed. The trial was had beginning January 6, 1927. No prejudice was shown to have arisen because the name of Brown was omitted from the second bill of particulars and the trial court did not err in admitting, over the objection of appellant, the testimony of Brown. (Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660.)

Appellant urges that the instruction on exemplary damages was incorrect for three reasons:

First, it allowed the jury to find exemplary damages without having first determined that respondent was entitled to actual damages.

Second, it told the jury that respondent was entitled to exemplary damages as a matter of right.

Third, there was no evidence justifying an instruction on exemplary damages and the instruction did not sufficiently require a finding of malice.

The instruction told the jury that "where one is guilty of making or circulating, by word of mouth, false and slanderous statements of another, if such statements were made maliciously...