Miller v. Nuckolls

• Decision Date: 11 November 1905
• Citation: 91 S.W. 759
• Parties: MILLER v. NUCKOLLS.
• Court: Arkansas Supreme Court

91 S.W. 759

MILLER v. NUCKOLLS.

Supreme Court of Arkansas.

November 11, 1905.

Rehearing Denied January 20, 1906.

Appeal from Circuit Court, Independence County, Frederick D. Fulkerson, Judge.

Action by Rhoda Nuckolls against J. T. Miller. From a judgment for plaintiff, defendant appeals. Affirmed.

See 89 S. W. 88.

This is an appeal from a judgment in favor of Rhoda Nuckolls against J. T. Miller for the sum of $2,000 in an action for slander and libel. The complaint contained two causes of action. The first alleged, among other matters, that the plaintiff was a single and unmarried woman, and that the defendant, maliciously intending to injure her good name and reputation in the community, did utter and publish of and concerning her certain false, defamatory, and scandalous matter, to wit: "There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls.'" Again, that he said, "Miss Rhoda Nuckolls has given birth to a child, and it was secretly buried at Hopewell," and that he also said to E. J. Peters, "Did you hear of the secret burial at Hopewell? There is no doubt but what it was Rhoda Nuckolls." It was further alleged that on each occasion the defendant meant by the language used to charge plaintiff with the offense of fornication, to her damage in the sum of $7,500. For the second cause of action the plaintiff alleged that defendant, intending to injure her good name and character, published about her the following defamatory and libelous matter, to wit: "Newark, Ark., May 18, 1903. Esq. C. P. Pickens, Dota, Ark. — Dear Sir: You no doubt have heard before now that agreeable to public gossip Miss Rhoda Nuckolls did in the latter part of the winter give birth to a child, and whether you have ever learned or not that the child was destroyed and secreted about or in the old warehouse used by Mr. Nuckolls as a warehouse and bedroom. That the same child was kept secreted in the warehouse until decomposition was so far advanced that considerable stench was created about the building, so much so that questions were asked concerning the cause, and to the questions would come the answer that it was caused by rotten onions, and it was said that when it could no longer be kept about the place that Nuckolls, Buck Crigler and Will Osborne taken it to the graveyard early one morning and dug a hole as deep as they could without getting down in it and buried it. Now this taken place the day that Will Thornton's wife's grave was dug, and Buck Crigler still at the graveyard when the crowd got there to dig Thornton's wife's grave, and help with the work of digging of the grave. I call your attention to this matter because you are guardian of the law, and that it should be looked into no one will deny, and even if it was Mr. Nuckolls, the officers of the law should take the matter up and sift it, and see if there is any foundation for the report. It is a fact that the man named did go and bury a child on the morning named. Then whose child was it? If there is anything in it I aim to see that it is dug up if I can get it done. Not that I want to persecute the woman, but that contemptible scoundrel Nuckolls I have almost prayed for some way that I might get revenge out of him, and I do hope that I have got it now. I have learned that that that blk. smith there made the box the child was put in. Mr. Frank Pierce could show where it was put in the graveyard so I am told. I think the matter should be investigated. Very respectfully, J. T. Miller." The defendant denied that he uttered the words alleged as slander. He admitted the writing, but claimed that it was made in good faith to an officer of the law, and was privileged. On the trial the jury returned a verdict of $1,000 for slander and $1,000 for libel, and judgment was rendered accordingly. Defendant appealed.

Gustave Jones, for appellant. Wright & Reeder, for appellee.

RIDDICK, J. (after stating the facts).

This is an appeal from a judgment in favor of Rhoda Nuckolls against J. T. Miller for $2,000 for slander and libel. Several grounds are urged in the brief of the appellant why the judgment should be reversed, and which we shall now notice.

First, as to certain remarks made by the presiding judge during the progress of the trial, and as to his rulings in admitting evidence offered by the plaintiff, and excluding evidence offered by the defendant, it is sufficient to say that these objections are not sufficiently set forth in the motion for new trial, and must be treated as waived. No reference whatever is made to the remarks of the presiding judge in the motion for new trial, and the reference to the error in admitting and refusing evidence is as follows: "The court erred in admitting testimony introduced by plaintiff over defendant's objection, as shown by the stenographer's transcript thereof. The court erred in refusing the testimony offered by defendant as shown by the stenographer's transcript thereof." It will be seen that the particular ruling made by the court for which the new trial is asked is not shown by the motion. The attention of the court is not called to the particular error complained of, and the assignment is too indefinite. Edmonds v. State, 34 Ark 721; Choctaw R. R. Co. v. Goset, 70 Ark. 427, 68 S. W. 879.

The first instruction given by the court does not in our opinion, state the law correctly; for it tells the jury that they should find for the plaintiff if they find from the evidence that defendant did utter and publish concerning the plaintiff as a basis of her action for slander, or if he used, such words as amount to charge the plaintiff with fornication, or with having been guilty of fornication, or did utter or publish words of or concerning the plaintiff which, in their common acceptation, amount to such a charge. Now it will be noticed that the part of this instruction which we have quoted in effect told the jury to find for the plaintiff if the words used by defendant amounted to charge plaintiff with having been guilty of fornication, without regard to whether such words were substantially the same as those set out in the complaint or not. Under this instruction it would have been the duty of the jury to find for plaintiff if the evidence had showed that defendant had said of the plaintiff, an unmarried woman, that she had permitted a man to have sexual intercourse with her, though no such words were set out in the complaint; for such words would, in effect, charge the plaintiff with fornication. But in an action for slander the plaintiff must prove that the defendant used substantially the same words as those alleged in the complaint. It is not sufficient to prove that the defendant made the same charge against the plaintiff in words substantially different from those alleged, even though of equivalent and similar import. 18 Am. & Eng. Enc. Law, 1078.

Nor do we think that it necessarily follows that the defect in this instruction was cured by the fact that the law was correctly stated in another instruction given at the request of the defendant; for the two instructions are, to a certain extent, contradictory. But a consideration of the evidence has convinced us that it does not show that the defendant uttered any words tending to charge plaintiff with having committed fornication except those set out in the complaint. There is evidence tending to show that the defendant did utter about plaintiff words substantially the same as those set out in the complaint. For instance, the complaint alleged that he said, "There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls'," and the witness testified that he said, "There has been...