Holmes v. Holmes
| Decision Date | 30 September 1872 |
| Parties | DENISON F. HOLMESv.EMILY I. HOLMES |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.
Messrs. AMOUR & SHAW, and Mr. J. H. KNOWLTON, for the appellant.
Mr. C. B. SMITH, for the appellee. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:
This was an action for slander, brought by appellee, in the Carroll circuit court, against appellant, for speaking words which, if spoken as alleged in the declaration, amount to a charge that appellee had been guilty of adultery and fornication.
There was a change of venue to the Whiteside circuit court, where the cause was tried upon the plea of not guilty, appellant found guilty, and appellee's damages assessed at $3000. The court, overruling appellant's motion for a new trial, gave judgment upon the verdict, and the case is brought here by appeal.
It appears from the record, in which all the evidence is preserved, that there was a fair conflict of evidence in respect to the fact of the speaking of the actionable words, or any of them, as alleged; and it appears from all the evidence that whatever words were spoken, were uttered only upon one occasion, and in the heat of passion, which the evidence strongly tends to show was provoked by the misbehavior of appellee and her mother, who was present, and in concert with whom appellee was acting.
Upon this state of the case and the facts in evidence, the court, at the instance of appellee's counsel, gave to the jury the following instruction:
“That malicious slander is an infamous offense, for which the law allows exemplary damages to be given; and if the jury find the defendant guilty, they may assess the plaintiff's damages at any sum not exceeding $10,000; and in arriving at the amount of damages, the jury may take into consideration the pecuniary circumstances of the defendant as well as the character of the plaintiff, which has been attacked.”
The term “infamous,” when used in characterizing offenses or crimes, is, in law, descriptive of that class of heinous crimes whose perpetrators were, on conviction, held by the common law to be incompetent witnesses, on the ground that men generally are not found to commit them, unless when so depraved as to be unworthy of credit for truth. The usual enumeration of them was treason, felony and the crimen falsi--the latter term including perjury and forgery.
It is needless to say that verbal slander, which is not indictable in this country, can not be considered as belonging to any such class.
Blackstone, after defining ordinary slander, says: “Words spoken in derogation of a peer, a judge or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous; and though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury, which is redressed by an action on the case, etc., as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party to recover damages for the injury sustained.” Black. Com. book 3, chap. 8, p 123.
Thus it appears that even this exceptional kind of slander, which was punishable on behalf of the crown, which was never recognized in this country, and has become obsolete in England, was characterized by a degree of enormity amounting to an atrocious injury, but was never classed among the infamous crimes.
The language employed in McClurkin v. Ewing, 42 Ill. 283, would seem to countenance that of the instruction under consideration. It is apparent that no point was there involved calling for an elementary definition of verbal slander. That given is not supported by the authorities, and the language used in the opinion must be regarded as employed through inadvertence, and as constituting a mere obiter dictum.
It is apparent, therefore, that the court, by the instruction in question,...
To continue reading
Request your trial
-
Hall Oil Company v. Barquin
...St. L. S.W. Ry. Co. v. Myzell, 87 Ark. 123, 112 S.W. 203; Willis & Bro. v. McNeill, supra; Bryan v. Acee, 27 Ga. 87; Holmes v. Holmes, 64 Ill. 294; Jones Turpin, 53 Tenn. 181; 1 Sedg. on Damages, 9th Ed., Sec. 388. In Ry. Co. v. Myzell, the charge was that "if you find for the plaintiffs, y......
-
McCloskey v. The Pulitzer Publishing Company
...3 N.Y.S. 156; Davey v. Davey, 50 N.Y.S. 161; Libbey v. Towle, 90 Me. 262; Cummings v. Line, 18 N.Y.S. 469; affirmed 138 N.Y. 675; Holmes v. Holmes, 64 Ill. 294; Freeman v. Tinsley, 50 Ill. 498; Shoaff v. Funk, 73 Ill.App. 550; affirmed 182 Ill. 224; White v. Newcomb, 49 N.Y.S. 704; Peterson......
- Tuyl v. Riner
-
Baker v. Winslow
... ... negligence, insult, or other cause of aggravation in the act ... which causes the injury. Holmes v. Railroad Co., 94 ... N.C. 318. They are not to be included in the damages by the ... jury as a matter of course simply because of the slander, ... ...