Miller v. Nuckolls

• Decision Date: 11 November 1905
• Parties: MILLER v. NUCKOLLS
• Court: Arkansas Supreme Court

91 S.W. 759

77 Ark. 64

MILLER v. NUCKOLLS

Supreme Court of Arkansas

November 11, 1905

Appeal from Independence Circuit Court; FREDERICK D. FULKERSON Judge; affirmed.

STATEMENT BY THE COURT.

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, towit "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, towit:

"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 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 hope with the working 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 bl'ksmith 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 one thousand dollars for slander, and one thousand dollars for libel, and judgment was rendered accordingly.

Defendant appealed.

Judgment affirmed.

Gustave Jones, for appellant.

In actions of slander, witnesses cannot be allowed to state impressions the words used made upon their minds, but must be confined to the words themselves. 7 Ala. 844; 5 Blackf. 200. Actionable words not counted upon cannot be given in evidence. Townshend, § 392, and citations.

Conceding the right of the presiding judge to question witnesses, it is incumbent on him to be cautious and circumspect in his language and conduct before the jury, in order not to express or intimate an opinion as to controverted facts. 51 Ark. 155; 40 Ark. 425; 17 Cal. 146; 27 Cal. 300. Where remarks of counsel are flagrantly prejudicial, and are persisted in, a new trial should be granted, notwithstanding counsel may have been reprimanded or even fined by the presiding judge for the offense. 74 Ark. 256; 58 Ark. 353; 76 N.W. 462. Instruction No. 1 was erroneous in failing to charge the jury that they must find from a preponderance of the evidence. 37 Ark. 580. Also, in charging the jury that if they found that the defendant used such words as amounted to charging the plaintiff with fornication, or words which in their common acceptation amounted to such a charge, the words were actionable in themselves. The allegations of the pleading and proof must correspond; otherwise there is variance, and the plaintiff fails. Townshend, Libel & Slander, 3 Ed. § 363; Id. § 338; 26 Mo. 153; 2 Murph. 380. It is not sufficient to prove the substance of the charge merely. 4 T. R. 217; 2 Wills, 104; 3 Allen (Mass.), 69. Where the words spoken are actionable per se, the law infers malice, and the jury can award compensatory damages only, but cannot award punitive damages without proof of express malice. 56 Ark. 103; 55 Ark. 501. Information furnished a magistrate is privileged, and an action thereon for libel will not lie. 34 Am. Dec. 330; 2 Am. Dec. 415; Ib. 426; 7 Am. Dec. 735; 3 Am. Dec. 473; 12 Am. Dec. 427; 17 Am. Dec. 187; 34 Am. Dec. 240; 1 Edm. 193; 19 Barb. 116; 28 U.S. (L. P. C.) 158; 44 Ga 156; 4 Bibb, 38; 3 Allen, 393, 12 Wend. 545. No action will lie against the informant, whether his statements be true or false, or his motives innocent or malicious. 5 Johns. 508; 2 C. & K. 4; 5 El. & Bl. 344; 3 Sandf. 341.

Wright & Reeder, for appellee.

Admission of incompetent evidence is no ground for reversal unless assigned as a ground for new trial. 70 Ark. 337. A general assignment in the motion is too indefinite. 34 Ark. 721. Objection to the language of the court was waived by failure to make it a ground for new trial. 62 Ark. 543; 43 Ark. 391; 44 Ark. 122. Expressions of opinion by counsel, based upon the evidence, are allowable and not prejudicial. 48 Ark. 131; 71 Ark. 427; 75 Ark. 67; 71 Ark. 433. If there was error in instruction No. 1, it was cured by other instructions given at request of appellant. 17 Ark. 292; 21 Ark. 357; 59 Ark. 422; 58 Ark. 353. It is not necessary to prove all of the words laid in the complaint, if such as are proved are intelligible and actionable in themselves. 2 East, 434; 52 Mo. 577; 25 Mo.App. 91; 1 Blackf. (Ind.) 330; 22 S.C. 372; 19 Neb. 742. The words alleged as slanderous being actionable per se, whether or not there existed express malice was a question of fact for the jury. 55 Ark. 501; 56 Ark. 100. If the instructions, taken as a whole, fairly submitted the case to the jury, their verdict will not be disturbed. 21 Ark. 357; 59 Ark. 422; 58 Ark. 353; 23 Ark. 115; 24 Ark. 264. If the matter charged as libelous be false, and the publication malicious, it is not privileged. 3 L. R. A. 52. If such charges are published recklessly or wantonly, they are actionable. Newell, S. & L. § 93; Odgers, L. & S. *p. 222; 3 F. & F. 509; 13 Am. & Eng. Enc. L. 418. Communications charging crimes of others made for purposes of revenge, and not from an honest motive to promote the ends of justice, are not privileged. Starkie on Slander, *pp. 221, 213. Even if privileged, the defendant would not be protected thereby if it was written without reasonable and probable cause. 13 Am. & Eng. Enc. Law. (1 Ed), 405, and note 3. Proof of the truth of the matter charged is not sufficient, unless defendant also prove that it was published with good motives and for justifiable ends. Const. Ark., art 2, § 6; Newell, S. & L. § 46.

OPINION

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. 720; Choctaw & M. Rd. 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 the words set out in...