Jacobs v. Cater

• Decision Date: 21 November 1902
• Citation: 87 Minn. 448,92 N.W. 397
• Parties: JACOBS v. CATER.
• Court: Minnesota Supreme Court

87 Minn. 448

92 N.W. 397

JACOBS

v.CATER.

Supreme Court of Minnesota.

Nov. 21, 1902.

Appeal from district court, Grant county; S. A. Flaherty, Judge.

Action by Nellie Jacobs against Charles Cater. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Syllabus by the Court

1. In an action for slander, language which is not actionable per se, and which does not contain the same imputation as that which forms the subject of the suit, is not admissible for the purpose of enhancing damages.

2. Certain words considered, and held not to have been admissible, and that it was error to submit their consideration to the jury for the purpose of showing malice. F. V. Brown, E. J. Schofield, and Brown & Kerr, for appellant.

C. J. Gunderson and A. J. Volstead, for respondent.

LEWIS, J.

The words which defendant is charged with having spoken in reference to respondent were actionable per so,-charging that she was an unchaste woman,-and hence malice is implied from the very fact that they were spoken. A witness testified, in answer to a question which called for the conversation, that on a prior occasion defendant was speaking of a certain publication made by respondent in her newspaper, about ‘Pull Down the Blinds,’ and said that she was a ‘G___d d___n dirty b___h to print such stuff, that children should read.’ The objection to the question, that it was irrelevant, incompetent, and immaterial, was insufficient, and a motion should have been made to strike it out. However, the court instructed the jury as follows: ‘Now, gentlemen of the jury, some testimony was offered and admitted in this case tending to show that defendant at other times called plaintiff certain vile names. Now, you could not allow the plaintiff anything at all for the use of those names by the defendant. That evidence is merely introduced for the purpose of throwing light on what the state of his mind was on the 18th of April, 1901, at the time it is claimed he made the accusation.’ This is assigned as error. It was held in Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710, that evidence of other publications containing substantially the same imputations as that sued upon were admissible in evidence for the purpose of proving actual malice, and thereby aggravating the damages. In that case the previous publication contained the same charge as the one upon which the action was founded, and was actionable per se. Larrabee v. Tribune Co., 36...