Kidder v. Bacon

• Decision Date: 12 February 1902
• Citation: 74 Vt. 263,52 A. 322
• Parties: KIDDER v. BACON.
• Court: Vermont Supreme Court

52 A. 322

74 Vt. 263

KIDDER

v. BACON.

Supreme Court of Vermont. Washington.

Feb. 12, 1902.

Exceptions from Washington county court; Watson, Judge.

Action for slander by Hattie R. Kidder against H. W. Bacon. From a judgment for plaintiff, defendant brings exceptions. Reversed.

The declaration contained two counts. The plaintiff was at the time of the alleged slander a school teacher in the town of Brookfield under a contract with the school directors of that town, which covered the then next succeeding two terms of school. It appeared that the alleged slanderous words were spoken on one occasion to one of said directors, and on another to two of them, both occasions being when said directors were inquiring of the defendant in regard to certain rumors affecting the plaintiff's character for chastity; and that in consequence of the alleged slanderous statements by the defendant said directors compelled the plaintiff to resign her position as such teacher.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and THOMPSON, JJ.

Frank Plumley, Zed S. Stanton, and Darling & Darling, for plaintiff.

John W. Gordon and W. A. Lord, for defendant.

TYLER, J. 1. As to the two occasions-August 22d and 24th—on which the plaintiff relies as grounds of recovery, it was not material that both occasions were alleged in the declaration as August 22d. As there were two counts, there might have been a recovery upon each count. The case falls within no exception to the rule that the precise time is not material and need not be proved as alleged. 1 Chit. PI. 258; Steph. PI. 295; 13 Enc. Pl. & Prac. 60, 67. The variance between the pleading and proof was immaterial.

2. The court could not hold, without hearing the evidence, that the communication by the defendant to the school committee was privileged, for under the cover of privilege the defendant might have spoken the words in malice. It is for the jury to decide whether or not the words were spoken. The defendant did not justify in his pleading, nor claim in his testimony, that he saw the plaintiff and Dr. Ellis in the act of adultery; on the contrary, he denied having spoken to Clark the words alleged. If, upon the evidence, the jury had found that the words were spoken and were false, there was no question of privilege.

3. The defendant claims a variance in the words proved from those alleged in the declaration. It was said in Smith v. Hollister, 32 Vt. 695,—a case cited by both parties,— that to maintain an action for slander the substance of the alleged charge must be proved in substantially the same words laid in the declaration; that any mere variation in the had been in those localities. That this was admissible, if the reports were caused by the slander, was settled in Nott v. Stoddard, 38 Vt 25, 88 Am. Dec. 633, and reaffirmed in Crane v. Darling, 71 Vt. 295, 44 Atl. 359, for the valid reason that greater injury might accrue to the plaintiff in consequence of the repetition of the slanderous words by others, but not as an additional ground of recovery. Driggs v. Burton, 44 Vt. at page 144.

6. The testimony of C. W. Ellis was properly admitted. It was that defendant told him the same story, in substance, that other witnesses had testified to, with the exception of omitting the charge of adultery. It was for the jury to determine whether or not the defendant intended to have the witness Ellis understand that he saw the parties in the act of adultery, or that they were in the act, though he did not charge it. This evidence was not relied upon to sustain the declaration, but as tending to show malice, and as bearing upon the question of exemplary damages. Charges other than those stated in the declaration, but of a similar character, may be proved in an action for slander, not as a substantive ground of recovery, but as tending to show malice. Cavanaugh v. Austin, 42 Vt. 570.

7. It was not error to admit evidence in respect to the defendant's pecuniary means. The plaintiff may show, in aggravation of damages, the fact that the defendant is a man of wealth and standing in the community. Brown v. Barnes, 39 Mich. 211, 33 Am. Rep. 375; Humphries v. Parker, 52 Me. 502; Rea v. Harrington, 58 Vt. 181, 2 Atl. 475, 56 Am. Rep. 501, 13 Am. & Eng. Enc. Law, 438. Where exemplary damages are awardable, as in this case, the defendant's pecuniary ability may be considered in order to determine what would be a just punishment for him. His ability to pay is a proper element for consideration. Earl v. Tupper, 45 Vt. 275.

8. It is well settled that when the words spoken are actionable the jury have a right to consider the mental suffering which may have been occasioned to a party by the publication of the slanderous words, and to allow damages therefor. 2 Greenl. Ev. § 420; 8 Am. & Eng. Enc. Law, 658; Nott v. Stoddard; Rea v. Harrington. There is no reason, therefore, why evidence of the mental pain and anguish should be confined to the plaintiff herself. Any person who observed symptoms of her mental condition could testify to the fact. In respect to expressions of mental or physical pain the rule is thus stated in 1 Greenl. Ev. § 102: "Whereever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof, of its existence. And whether they were real or feigned is for the jury to determine." See Abb. Tr. Ev. p. 751, and nates. That exclamations are admissible to prove the existence of pain is established by abundant authority. See cases cited in note "a," 1 Greenl. Ev. § 102, and in notes to Baker v. Kelly (Miss.) 63 Am. Dec. 280; State v. Howard, 32 Vt. 380, 78 Aim Dec. '609. Statements of a sick person, when the nature of his illness is in issue, made to a physician or other attendant during his sickness, relative to the nature, symptoms, and effect thereof, are admissible. People v. Vernon (Cal.) 95 Am. Dec. 66, notes; State v. Fournier, 68 Vt 262, 35 Atl. 178; Bruwn v. Town of Mt Holly, 69 Vt. 364, 38 Atl. 69.

9. A witness produced by the plaintiff, having testified to her mental state on an occasion, was asked: "What did she then say about her present—her then...