Mitchell v. Milholland

• Decision Date: 29 March 1883
• Citation: 1883 WL 10198,106 Ill. 175
• Parties: EBENEZER B. MITCHELLv.JOHN H. MILHOLLAND.
• Court: Illinois Supreme Court

106 Ill. 175

1883 WL 10198 (Ill.)

EBENEZER B. MITCHELL

v.JOHN H. MILHOLLAND.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. WILLIAMS, BURR & CAPEN, and Messrs. ROWELL & HAMILTON, for the appellant:

It is not slander to speak the truth of another. McDavid v. Blevins, 85 Ill. 238.

The plea of justification puts in issue the truth of the alleged slanderous statement, and it is error to charge the jury, where such plea is filed, that if they believe, from the evidence, that the defendant spoke the words charged, they should find him guilty.

In a contested case, where there is a conflict in the evidence, the jury should be very carefully instructed; and if an instruction is given on one side that standing alone would be erroneous, the error is not cured by giving a counter instruction for the other side. Springdale Cemetery Association v. Smith, 24 Ill. 482; Chicago, Burlington and Quincy R. R. Co. v. Payne, 49 Id. 505; Chicago, Burlington and Quincy R. R. Co. v. Dunn, 61 Id. 386; Toledo, Wabash and Western Ry. Co. v. Larmon, 67 Id. 68; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Id. 88; Camp Point Manf. Co. v. Ballou, 71 Id. 417; Swan v. People, 98 Id. 610; Stratton v. Chicago City Horse Ry. Co. 95 Id. 25; Steinmeyer v. People, 95 Id. 383; Rupp v. Jarrett, 94 Id. 479; Wabash Ry. Co. v. Henks, 91 Id. 406; Illinois Linen Co. v. Hough, 91 Id. 63; American Ins. Co. v. Crawford, 89 Id. 62; Toledo, Peoria and Warsaw Ry. Co. v. Grable, 88 Id. 441; Cushman v. Cogswell, 86 Id. 62; Quinn v. Donovan, 85 Id. 194; Ludwig v. Sager, 84 Id. 99.

The fact as to whether or not a man testified falsely, is to be determined by the facts and circumstances existing at the time, and not by any subsequent change of circumstances.

A plea of justification in slander is not an aggravation, if made in good faith. Sloan v. Petrie, 15 Ill. 425; Hawver v. Hawver, 78 Id. 412; Rev. Stat. chap. “Slander,” sec. 3.

Good faith goes in mitigation of damages. Moore v. Mauk, 3 Bradw. 114.

Words spoken in good faith, in the belief that they are true, are not malicious in fact, and such good faith should always go in mitigation of damages.

A cause of action that is barred by the Statute of Limitations can not be vitalized by amending or adding new counts to a declaration in a suit brought upon another cause of action. Illinois Central R. R. Co. v. Cobb et al. 64 Ill. 128, and cases cited; Illinois Central R. R. Co. v. Phelps, 4 Bradw. 238; Phelps v. Illinois Central R. R. Co. 94 Ill. 548.

Messrs. FIFER & PHILLIPS, for the appellee:

The words, “he perjured himself,” are actionable per se, without colloquium or inducement. Sanford v. Geddis, 13 Ill. 329.

Malice is the gist of the action in slander. Gilmer v. Eubanks, 13 Ill. 274; Ayers v. Grider, 15 Id. 37; McKee v. Ingalls, 4 Scam. 30.

The speaking of actionable words is evidence of malice. McKee v. Ingalls, 4 Scam. 30; Flagg v. Roberts, 67 Ill. 485; Ayers v. Grider, 15 Id. 37; Horsley v. Brooks, 20 Id. 116.

The law presumes that the person speaking actionable words intends the injury which the slander is calculated to effect. Baker v. Young, 44 Ill. 42; McKee v. Ingalls, 4 Scam. 30.

Repetition of slanderous words may be considered by the jury on the question of malice, and in aggravation of damages, ( Stowell v. Beagle, 79 Ill. 525,) and for this purpose a repetition after suit brought may be shown. Hatch v. Potter, 2 Gilm. 725.

Justification, pleaded without a bona fide expectation of proving it, is a re-publication of the slander, and may be considered by the jury in aggravation of damages; and of the good faith of the plea the jury are the judges. Harbison v. Shook, 41 Ill. 141; Sloan v. Petrie, 15 Id. 425; Spencer v. McMasters, 16 Id. 405; Freeman v. Tinsley, 50 Id. 497; Hawver v. Hawver, 78 Id. 412.

The law implies damage from the speaking of actionable words, ( McKee v. Ingalls, 4 Scam. 30; Baker v. Young, 44 Ill. 42,) and the jury are to determine, from all the circumstances, what damage should be given, and are not confined to pecuniary loss or injury. Baker v. Young, supra; Spencer v. McMasters, 16 Ill. 405. Mental suffering, caused by words actionable per se, is proper to be considered as an element of damage. Adams v. Smith, 58 Ill. 417.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by appellee, against appellant, for slander. The trial in the circuit court resulted in a verdict and judgment for the plaintiff in the action, which, on appeal, was affirmed in the Appellate Court. The grounds for reversing the judgment relied upon here, are the admission of improper evidence, the giving of improper instructions for plaintiff, and refusing certain instructions asked by the defendant.

It appears from the record that there is a church in the west part of McLean county, of the Cumberland Presbyterian denomination, known as the West Union Church. Appellee was pastor, and appellant was one of the elders. In this church there were in all six elders. The session of the church, under the rules of the denomination, is composed of the elders and the pastor, the latter being, ex officio, moderator. In 1875 it appears that one Hayberger, an elder, was elected clerk of the session, and no change was made in the office until 1879, when, as appears, some trouble arose between the pastor and appellant in regard to church matters, and Hayberger being in sympathy with appellant, at a meeting of the session, on September 5, 1879, he was superseded in the office of clerk by one Williams, who was then formally elected to that office. The church record was subsequently surrendered to Williams. At a meeting of the presbytery at Danvers, within which this church is located, in March, 1880, the following question was submitted to that body for decision: “Can a church session elect a clerk, when there is no vacancy, without notifying the acting clerk?” The decision of the question was deferred until the August meeting, at Lincoln, when the presbytery decided in the negative. Subsequently the session of West Union presented the question to the presbytery in form, and requested that body to decide who was the legal clerk of the session. In March, 1881, in conformity to the former decision, it was held that Hayberger was the legal clerk of the session. An appeal was taken from this decision to the synod of Sangamon, which body had the right and authority to review the decision of the presbytery, where the former decision, that Hayberger was clerk, was reversed, and Williams was declared to be the clerk of the session. In the meantime, however, after the decision of the presbytery on the question propounded, and before the decision of the synod, on January 4, 1881, Hayberger brought an action of replevin against Williams, before a justice of the peace, to recover the possession of the church record. On the trial of this cause appellee was a witness, where the question involved was who was clerk of the session, and entitled to the custody of the record, and the alleged slanders grew out of the testimony given by appellee on that trial, appellant, on various occasions, making the charge, in substance, that appellee had sworn falsely on that trial.

On the trial of the cause appellant put in evidence the proceedings of the presbytery held at Stanford, in March, 1881, wherein it was decided that Hayberger was the lawful clerk. Appellee also read in evidence the proceedings of the synod reversing the proceedings of the presbytery, on appeal to that body,--and the decision allowing this evidence is claimed to be erroneous. Whether any of this evidence was strictly competent, is a question which it is not necessary here to decide; but it is apparent if the proceedings of the presbytery were legitimate evidence, the proceedings of the synod were also competent for the jury. Under the regulations of the church the synod had the power to reverse decisions of the presbytery, and when appellant interposed any right under the action of the latter body, it would have been manifest injustice to have denied appellee the right to prove that those proceedings had been annulled and set aside by a higher tribunal. The testimony which was charged to have...