Rea v. Harrington

• Decision Date: 10 February 1886
• Court: Vermont Supreme Court
• Parties: REA v. HARRINGTON.

2 A. 475

58 Vt. 181

REA

v. HARRINGTON.¹

SUPREME COURT OF VERMONT.

Filed February 10, 1886.

Exceptions from Caledonia county.

Action in case for slander. Defendant demurred to the declaration. The court, Ross, J., presiding, overruled the demurrer pro forma, to which the defendant excepted. The defendant then pleaded the general issue, and went to trial on the merits. Trial by the jury. Verdict for the plaintiff. After the verdict, and before judgment, the defendant made a motion in arrest of judgment. The court overruled the motion, and the defendant excepted. The facts sufficiently appear in the opinion.

Joseph P. Lamson, for plaintiff.

The motion in arrest was properly overruled. A declaration that would be bad on demurrer may be good after verdict, on motion in arrest. A motion in arrest stands the same whether the declaration has been demurred to or not. After verdict, every reasonable presumption should be made in favor of the sufficiency of the declaration. There was no error in admitting the evidence that the defendant, upon other and various occasions, reported or used the same slanderous words that he did in the first instance. 44 Vt. 144; 42 Vt. 276. It was only admitted and used for the purpose of tending to show malice on the part of the defendant. There was no issue in the case so as to make it material whether the defendant was rich or poor, and that evidence was properly excluded. The plaintiff always has the right to tell what effect the words spoken had upon him, as an element for estimation of the damages.

Bates & May, for defendant.

It was error to permit the proof of speaking slanderous words subsequent to the bringing of the suit, and within the statute of limitations, for any purpose. The evidence objected to showed a distinct cause of action not barred by the statute; and the reception of the evidence, and the fact that the same probably enhanced the amount recovered of the defendant, would be no bar to a subsequent suit. Frazier v. McCloskey, 60 N. Y. 337; Keenholtz v. Becker, 3 Denio, 346; Root v. Lowndes, 6 Hill, 518; Sedg. Dam. (5th Ed.) 111; Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202; Schenck v. Schenck, 20 N. J. 208; Forbes v. Myers, 8 Black, 74. The cases where courts have admitted the repetition of the slanderous charge will be found, like Cavanaugh v. Austin, 42 Vt. 576, where the words spoken were before suit began. Chipman v. Cook, 2 Tyler, 456. It was error to exclude the evidence as to the property of the defendant. A person's rank is often determined, in part at least, by his financial standing. One's wealth is an element in making up his position in community. The supreme court of Maine thus defines the law: "Where exemplary damages are claimed, a different question is presented. The defendant's pecuniary ability is then a matter for the consideration of the jury, on the ground that a given sum would be a much greater punishment to a man of small means than to one of larger. See Brown v. Barnes, 39 Mich. 211; Johnson v. Smith, 64 Me. 553; Stanioood v. Whittemore, 63 Me. 209; Hayner v. Cowden, 27 Ohio St. 292; Bump v. Betts, 23 Wend. 85; Kniffen v. McConnell, 30 N. Y. 289; Bennett v. Hyde, 6 Conn. 24; McBride v. McLaughlin, 5 Watts, 375; Buckley v. Knapp, 48 Mo. 153; Holsey v. Brooks, 20 Ill. 115; Kanesy v. Paisley, 13 Iowa, 89; Bell v. Morrison, 27 Wis. 67; Brown v. Swineford, 44 Wis. 282; Adock v. Marsh, 8 Ired. 360. The plaintiff should not have been allowed to show that he was overcome, and cried; nor that he, for nights, could not sleep; nor that he was all of a tremor and cried; nor that he could not work; nor that he did not like to see anybody. The rule is as stated by Metcalf, J., in Stowe v. Heywood, 7 Allen, 118: "It [mental suffering] cannot be measured aright by outward manifestations, for there may be a show of great distress where little or none is felt. And great distress may be concealed and borne in silence with an apparently quiet mind. * * * Hence it is plain that the amount of a plaintiff's damages for mental suffering is not to be affected by evidence of his language or conduct, * * * but by the nature and extent of the injury which caused that suffering, and its natural tendency to produce it." If the inquiry had been confined as to whether plaintiff had suffered in mind on account of the speaking of the words charged, we could not complain. The error consisted in allowing the plaintiff to narrate these outward signs of an inward anguish. Borne v. Danville, 53 Vt. 183; Gulf, C. & S. F. R. R. v. Levy, 59 Tex. 542.

VEAZEY, J. The declaration is for slander. The defendant demurred, and the demurrer was overruled, to which the defendant excepted. The defendant was then allowed to plead the general issue, and go to trial on the merits, which resulted in a verdict for the plaintiff. Thereupon a motion in arrest was filed, which was overruled, and the defendant excepted. He now claims to test the sufficiency of the declaration, under the exception to overruling the demurrer.

1. By pleading over and going to trial, instead of submitting to judgment on the declaration, the defendant waived his exception to the ruling on the demurrer. A verdict may cure defects which would render a declaration demurrable. After verdict, every reasonable presumption is made in favor of the sufficiency of the pleadings. Brown v. Hitchcock, 28 Vt. 452; Morey v. Homan, 10 Vt. 565. Moreover, on demurrer to any of the pleadings which go to the action, the judgment for either party is the same as it would have been on an issue in fact, joined upon the same pleading, and found in favor of the same party. Gould, PL c. 9, § 42. When cast upon his demurrer, a defendant is not entitled of right to plead over. If the court extend the favor, against the plaintiff's right to judgment, it would be unjust to put the plaintiff to the expense and risk of trial, and then, after favorable result, subject him to the risk of the demurrer for defects that a verdict cures, where there is no demurrer. The sufficiency of this declaration can be tested only under the rules applicable to the motion in arrest.

2. The first assignment of error in the motion is as follows: "It is not alleged in the declaration, nor proved on trial, that, in speaking the alleged slanderous words as to the alleged incest, the defendant said the plaintiff had carnal intercourse with his daughter Sadie, with knowledge of the relationship." This assignment correctly assumes that incest is made a crime in this state. R. L. § 4246. It is undoubtedly true that knowledge of the relationship is essential to constitute the crime. Such allegation is not in terms in the declaration; but it is alleged that "the plaintiff was a married man, and had a daughter living in his family, by the name of Sadie Rea, * * * who had arrived at the age of seventeen years. * * *" It is also stated in the bill of exceptions that it was conceded that plaintiff was married in 1864; that his wife was still living; that the plaintiff was never divorced; and that Sadie was their daughter, now 18 years old. Defendant's first request to the court for instructions to the jury was to the effect that plaintiff's knowledge of the relationship was essential to create the crime of incest. The exceptions state that, on the subject of the requests, the court told the jury what was necessary to constitute a charge of the several crimes named in the requests. The charge of the court, therefore, must have included the element of knowledge of the relationship. Judgment will not be arrested, after verdict, for lack of an essential averment in the declaration which is contained by implication in the averments used, or which may be considered to have been proved as a part of what is alleged. Morey v. Homan, supra; Curtis v. Burdick, 48 Vt. 166. The averment implied knowledge of the relationship, the concession tended to show it, and the charge must have included it as an essential element. This exception, therefore, cannot be sustained.

3. The second and third assignments of error in the motion in arrest may be treated together, and were as follows: "There was no proof, and no allegation in the declaration, that the said Sadie was ever with child, or had a child born alive, or that there could have been or was any attempt at abortion, or any murder of any person, or any attempt to conceal any murder, or any person or child to murder. Third. There was no proof that Sadie was pregnant, or had been, or that her father or any one else supposed her to be pregnant, or that any person who heard the discourse believed, or had reason to believe, that she had been or was pregnant." The defendant's second request to charge covered the same point.

The claim is that, as there was no proof as to any murder, or attempt to commit murder, etc., and no hearer understood or believed there was any person to murder, the words charged did not constitute slander. The effect of the claim is that, because it was not true as charged in substance by defendant that plaintiff's daughter had a child begotten by the plaintiff, which he killed, and threw to the pigs, it was not a slander to make the charge, especially if the hearers did not believe it. Although there is some qualifying authority, we think the sound rule is that if the words impute a crime, they are actionable per se, even though the charge could not be true. It is the obloquy of the charge that produces the damage, and not the exposure to punishment. Eckart v. Wilson, 10 Serg. & R. 44; Carter v. Andrews, 16 Pick. 1. In the case last cited, Shaw, C. J., says: "But it is no defense to this action that the charge could not be true." Neither does the disbelief of the hearers destroy the actionable quality of the charge. If they had no right to believe or understand there was an imputation of crime, either by reason of the expressions in the same connection,—as he is a murderer; he killed my dog,—or by reason of facts...