Macke v. Wagener

• Decision Date: 06 June 1921
• Docket Number: No. 21265.,21265.
• Citation: 183 N.W. 360,106 Neb. 282
• Parties: MACKE v. WAGENER.
• Court: Nebraska Supreme Court

106 Neb. 282

183 N.W. 360

MACKE

v.WAGENER.

No. 21265.

Supreme Court of Nebraska.

June 6, 1921.

Syllabus by the Court.

On the trial of an action for slander, a decree in an equitable action between the same parties canceling certain notes given by defendant in attempted settlement of the damages growing out of such slander, on the ground that they were “without consideration,” was received in evidence over objections of plaintiff; such decree had been affirmed, but upon the ground of undue influence, the Supreme Court expressly holding that they were not without consideration. Held, that the objections should have been sustained.

By introducing in evidence, upon rebuttal, the opinion of the Supreme Court, plaintiff did not waive his exception to the ruling of the trial court admitting the decree.

The decree was immaterial and incompetent evidence, and had a tendency to mislead the jury, and its admission was therefore prejudicial error calling for a new trial.

Appeal from District Court, Boone County; Button, Judge.

Action by Mary Wagener against Henry Macke. Judgment for plaintiff for one cent damages, and she appeals. Reversed and remanded.

See, also, 102 Neb. 123, 166 N. W. 191, L. R. A. 1918C, 121.Vail & Flory, of Albion, and Wm. L. Dowling, of Madison, for appellant.

W. R. Patrick, of Omaha, V. E. Garten, of Albion, and Ben S. Baker, of Omaha, for appellee.

Heard before MORRISSEY, C. J., and DAY, DEAN, FLANSBURG, and ROSE, JJ., and REDICK, District Judge.

REDICK, District Judge.

This is an action for slander brought by Mary Wagener, plaintiff, against Henry Macke, defendant.

The present action is the development of the following facts: On March 30 and 31, and April 1, 1915, Macke is alleged to have spoken and published certain slanderous words of and concerning Mary Wagener, and on April 7, 1915, in an attempted settlement of the claim of the latter for damages, Macke executed and delivered to her four notes aggregating $3,000, secured by mortgage upon certain lands in Boone county, Nebraska. On April 14, 1915, thereafter, Macke brought a suit in equity in the district court for Boone county against Mary Wagener to cancel said notes and mortgage, alleging that they were procured from him by duress and undue influence on the part of the friends and agents of said Mary (she not having taken part in the negotiations) and were without consideration. Mary answered, denying all duress and undue influence, and set up in part the speaking of the slanderous words, and alleging that the release of her claim for damages on account thereof was the consideration for said notes; Macke replied by a general denial and setting up some special defenses. The trial resulted May 15, 1916, in a decree for Macke finding that the notes were “void for want of consideration,” canceling them and granting a perpetual injunction.

Mary Wagener prosecuted an appeal to this court, and the decree of the district court was affirmed as modified, the opinion being written by Cornish, J. (Macke v. Jungels, 102 Neb. 123, 166 N. W. 191, L. R. A. 1918C, 121) in which he said, speaking for the court:

“We are unable to agree with the trial court that the incident was of such trifling nature that the court can say, as a matter of law, that the words used were not slanderous, nor sufficient to base a claim for damages.”

But it was held that the circumstances surrounding the execution of the notes and mortgage “while not amounting to duress, did amount to a social and mental force exerted upon him [Macke] controlling the free action of his will, and preventing that voluntary action in the giving of the notes which equity will relieve against on the ground of undue influence.” It was further held that it would be inequitable that Mary Wagener's claim for damages should be lost by running of the statute of limitations while the equity suit was pending, she having defended said suit in good faith upon the ground that undue influence was not exerted; and she was therefore permitted, at her election, “to plead, setting up her alleged cause of action against the plaintiff, and, upon issues being joined the cause tried as a law action for damages;” and the cause was remanded for further proceedings as indicated.

Thereupon following the filing of the mandate of this court, Mary Wagener filed her petition in slander against Macke in the district court, wherein she began:

“Comes now Mary Wagener and files her petition in pursuance of the mandate of the Supreme Court in this case and complains of Henry Macke, and says.”

The petition then proceeds at great length to set out the speaking by Macke, concerning plaintiff, in the presence of numerous persons, of words in the German language which translated meant: “You have got man's fever or otherwise you would not want to sit here with the men;” “she squeezes herself into the pew like a bull to heifers in the cornfield;” and other words of like import, all of which, plaintiff alleged, were understood by those who heard them and were intended to charge plaintiff “of having an uncontrollable sexual desire,” etc.; the petition closing with a prayer for $12,000 damages.

Defendant answered, denying generally the allegations of the petition, and that the words spoken had, or were understood as having, any opprobrious meaning, and alleging that properly translated his words meant, “if she has man's fever” or “if she wishes to be amongst men-folks,” “why does she not marry one?” and “she squeezes herself into the seat like a steer in the cornfield,” etc. And then follow allegations of matters claimed to be in explanation or excuse, not necessary to set out. Plaintiff replied generally.

Upon the issues so framed trial was had before the district judge and a jury, which resulted in a verdict for the plaintiff for one cent damages. Motion for new trial having been overruled, plaintiff brings the case here on appeal, alleging error: (1) In allowing counsel for defendant to recite the history of the equity case in his opening statement; (2) in admitting in evidence the pleadings and decree in the equity suit; (3) in overruling plaintiff's motion for a new trial.

The first two assignments may be considered together, as they involve but one principle of law, which is applicable to both. The bill of exceptions shows the following proceedings during the opening statement by counsel for defendant Macke:

“Mr. Patrick: The evidence will further show, gentlemen, that this preliminary meeting was followed by another one later in the evening at the priest's house, at which the priest obtained a note from Macke, in favor of the housekeeper, Mary Wagener, for the sum of three thousand dollars.

Mr. Dowling: The defendant, who is now the plaintiff, objects to counsel in his opening statement going into the details of the transaction tried out in the former case, because the same is incompetent, immaterial, and irrelevant, and prejudicial, and moves the court to exclude such statements.

Motion overruled. Defendant excepts.

Mr. Patrick: Counsel went into the statement that there was a meeting at Mr. Vail's office, and--

Mr. Dowling: Defendant-plaintiff objects to the statement of counsel just made, and moves the court to strike out the statement and instruct the jury to pay no attention to it, for the reason that none of the matters and things suggested are capable of proof and are immaterial in the present case, because the other case, or branch of the case, is settled and determined, and this is a suit for slander, and the statement is prejudicial to the rights of Mary Wagener.

Court: That may be true, but I don't know, in the present situation of the case. Motion overruled. Defendant excepts.

Mr. Patrick: There was a proceeding to cancel the notes and mortgage in this suit, which was begun originally by Henry Macke, as plaintiff, v. John W. Jungels, the priest, and Mary Wagener, his housekeeper, and it resulted in a trial in this court, in which the mortgage and notes were canceled. The case found its way to the Supreme Court and was decided there, in which the judgment of this court was affirmed, and on October 15, 1918--about three years and six months after the occurrence of the events in the chapel and the church--this petition was filed in this case, charging that Mary Wagener was grievously injured in the sum of...