King v. Sassaman

• Decision Date: 20 December 1899
• Citation: 54 S.W. 304
• Parties: KING v. SASSAMAN.
• Court: Texas Court of Appeals

54 S.W. 304

KING v. SASSAMAN.

Court of Civil Appeals of Texas.

December 20, 1899.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by Susan C. King against N. K. Sassaman. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action for slander by appellant against appellee, for words spoken as follows: "She (meaning plaintiff) says I (meaning defendant) gave her the clap; and, if she has it, she caught it from some one else, for I never had it;" and: "She says I gave her the clap, but I did not do it, for I didn't have it. She caught it from some one else." The parties had been husband and wife, but had been divorced; and the slander is alleged to have been spoken after the divorce, but relates to time while they lived together as man and wife. Plaintiff claimed actual and vindictive damages. Verdict and judgment below for defendant, and plaintiff has appealed, assigning errors.

Baker & Ross, for appellant. Nat. L. Davis and Boynton & Boynton, for appellee.

COLLARD, J. (after stating the facts).

1. Questions raised as to the admission of testimony will not be considered, because there was no bill of exceptions reserved, except by the statement of facts filed more than ten days after the trial. Rev. St. art. 1365; Dist. Ct. Rule 56.

2. The charge of the court is erroneous, in that it made liability of defendant depend upon what he meant by the alleged slanderous words. The question is as to actual and compensatory damages, not what he meant or intended by the words used, but what the words meant to the ordinary hearer. If the language used was slanderous, its meaning must be ascertained from the language as commonly understood, not from what defendant intended by it. The language may have a more definite meaning when applied to the facts and circumstances, but it is in all cases the language used that constitutes the cause of action, construed by the application that may be made of it to the facts and circumstances. Odgers, Lib. & Sland. pp. 4, 264; Townsh. Sland. & Lib. p. 55, § 68; and Id. p. 78, § 91; Belo v. Smith, 91 Tex. 225, 42 S. W. 850. "No amount of good intent will excuse an act otherwise wrongful, and no amount of bad intent will make wrongful that which otherwise is a permitted act." If a wrong is not done by the words spoken, intent will not make it so, and malice cannot be imputed to harmless words. Townsh. Sland. & Lib. p. 78, §§ 91, 92. If the words be injurious, as explained by the facts, malice may be shown to aggravate the wrong. The assignment of error addressed to this portion of the charge is sustained. We do not believe it was necessary for the jury to find that the exact words alleged were spoken, to sustain the action. "Ordinarily it is sufficient if the words proved correspond substantially with those alleged." Equivalent words are not always sufficient. But there may be a variation in the form of the expression. Townsh. Sland. & Lib. §§ 363, 364. Zeliff v. Jennings, 61 Tex. 464, 465; Odgers, Lib. & Sland. p. 537. "If the words uttered convey practically the same meaning as the words laid, the variance will be held immaterial." Id. The court's charge on this subject is not perfectly accurate. We believe it is only the statements and reports made by the defendant that he would be liable for, and not reports circulated by others. The court's charge can be more definite on this subject. He would be responsible for reports circulated and published by himself. The charge of the court authorizing a recovery of exemplary damages is not as full as it should be. It makes the defendant liable for such damages, in addition to compensatory damages, in case the...