McCleneghan v. Reid

• Citation: 51 N.W. 1037,34 Neb. 472
• Parties: MCCLENEGHAN v. REID.
• Decision Date: 13 April 1892
• Court: Supreme Court of Nebraska

34 Neb. 472

51 N.W. 1037

MCCLENEGHAN

v.REID.

Supreme Court of Nebraska.

April 13, 1892.

Syllabus by the Court.

1. In an action for slander, and to recover money paid under duress, a part of the same transaction, issues were joined, and a trial had, which resulted in a verdict of $500 for the plaintiff. There being a conflict in the testimony, the court will not disturb the verdict.

2. On the trial the plaintiff introduced testimony in support of his cause of action; the defendant thereupon introduced evidence to sustain his answer; the plaintiff then introduced evidence to rebut the evidence introduced by the defendant, and to show that the cattle in controversy in fact belonged to him, and were not branded as claimed by the defendant. Held no error.

3. The order in which proof is introduced is to great extent in the discretion of the trial court, and, unless a party has been deprived of a substantial right or there is an abuse of discretion, the action of such court will not be reversed.

4. In an action for slander, proof that the defendant repeated the words alleged to be slanderous at other times before the bringing of the action than those set forth in the petition may be introduced for the purpose of showing malice.

5. There is no material error in the instructions.

Error to district court, Douglas county; DOANE, Judge.

Action by John Reid against Samuel McCleneghan for slander. From a judgment on a verdict for plaintiff, defendant brings error. Affirmed.E. F. Gray, for plaintiff in error.

Cowin & McHugh, for defendant in error.

MAXWELL, C. J.

This is an action in two counts,--the first to recover the sum of $102.27 paid under alleged duress; and the second, as a part of the same transaction, for slander in calling the defendant in error a thief. The defendant below in his answer alleges: “(1) For answer to the first cause of action in the plaintiff's petition herein, the defendant states that the plaintiff at the time mentioned in said first cause of action did ship a bunch of cattle to South Omaha cattle market, and there did sell the same. That five of the cattle so shipped and sold then were the property of the defendant, and the defendant did wire to prevent the sale of his said cattle, and did proceed to South Omaha immediately, and identify and claim his said five cattle, and then did sell them for $102.27 to Horn & Sharp, commission men, who had made sale of said bunch of cattle for the plaintiff. The defendant denies that he claimed that he would have the plaintiff arrested and sent to jail; denies that he claimed that he would make complaint for that purpose; denies that he would then and there have had the plaintiff arrested and sent to jail; denies that the plaintiff permitted the vendee of said stock to pay the defendant under threats and duress; denies that the defendant's claim was made to extort money from the plaintiff; and the defendant denies each and every allegation in said first cause of action contained which is not expressly admitted above. (2) For answer to the second cause of action in said petition, the defendant denies each and every allegation in said second cause of action contained. (3) For a second defense and answer to said second cause of action, the defendant states that the plaintiff, in Douglas county and state of Nebraska, on the 1st day of August, A. D. 1888, and at and before the time of the supposed speaking of the supposed defamatory words mentioned in said second cause of action, feloniously did steal, take, and carry away and sell at the stock-yards, in South Omaha, one cow, one yearling heifer, and three steers, of the value of $102.27, the property of the defendant, and the said cattle being the same five head of cattle mentioned in said second cause of action as claimed by the defendant; and the said stealing being the same stealing which is alleged in said second cause of action to have been by the defendant charged against the plaintiff, and in reference to which stealing it is in said second cause of action alleged that the defendant did speak and publish of and concerning the plaintiff the words, viz., ‘You,’ speaking of this plaintiff and meaning this plaintiff, ‘are a damned thief; you stole these cattle, and you know it;’ and ‘I will have you arrested for a thief before you leave this ground,’ meaning said five head, ‘and I will send you right to the penitentiary;’ and that said supposed defamatory words in reference to said five head of cattle alleged in said second cause of action to have been spoken and published by the defendant of and concerning the plaintiff are true. (4) For a third defense and answer to said second cause of action, the defendant states that the plaintiff, in Douglas county, Neb., on the 1st day of August, 1888, and at and before the time of the supposed speaking of the supposed defamatory words mentioned in said second cause of action, did ship...