Ross v. Ward

• Decision Date: 12 February 1901
• Citation: 85 N.W. 182,14 S.D. 240
• Parties: ROSS v. WARD.
• Court: South Dakota Supreme Court

85 N.W. 182

14 S.D. 240

ROSS v. WARD.

Supreme Court of South Dakota

February 12, 1901

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Action by Van L. Ross against John Ward. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John Wood and A. W. Burtt, for appellant. H. C. Hinckley, for respondent.

CORSON J.

This is an action for slander. Verdict and judgment for the plaintiff, and the defendant appeals. It is averred in the complaint that on the 1st day of April, 1899, the following defamatory words were spoken by the defendant of and concerning the plaintiff, "Van Ross is a thief." In his second count it is averred that on the 24th day of April the defendant again used substantially the same language of and concerning the plaintiff, and that this was repeated on the 25th day of April. The defendant in his answer does not attempt to justify by averring that the statements made by him were true, but he does aver in his answer that in making the statements in the plaintiff's complaint mentioned the defendant believed them to be true at the time he made them and he gives in detail the circumstances under which two head of cattle were lost by him in October, 1898, and the grounds upon which he based his belief that the plaintiff had stolen them. The defendant, as his third defense, alleged that the plaintiff was a candidate for the office of alderman for the First ward of the city of Huron at the city election to be held in April, 1899, and was competing with other candidates for said office; that the contest therefor became exciting and the electors became interested in said election; that in a conversation with one David Smith, who was an elector and taxpayer of said First ward, on or about April 1, 1899, a short time before said election, the defendant, in discussing the merits and fitness for the office of alderman of the plaintiff and the other candidates, made the statement set forth in the complaint, in the interest and for the benefit of the taxpayers of the city of Huron and the community at large, and that the language was used by defendant in a private conversation with said Smith and one J. S. Burke electors and taxpayers of said city, in which the defendant is an elector, property holder, and taxpayer, and interested in the election of aldermen and other officers of said city. As a fourth defense, the defendant avers that the statements made by him on or about April 24th, in regard to the plaintiff, were called out by the questions and conduct of the plaintiff himself. The defendant further avers that whatever he said of and concerning the plaintiff was said in the full belief of its truth and verity, and was said to parties interested as to the plaintiff's qualifications and fitness for office, and the defendant denies each and every allegation contained in said complaint not specifically admitted.

It will thus be seen that the defendant admits the statements alleged in the complaint to have been made by him on the 1st of April, 1899, and on the 24th of the same month; that he pleads the facts and circumstances attending the loss of his cattle in mitigation of damages; that he avers as a defense that the statements made by him on the 1st day of April were made of and concerning the plaintiff while he was a candidate for the office of alderman of the city of Huron, and to parties who were taxpayers and electors of said city, and interested with himself in the officers to be elected at the then ensuing election, to be held on the 6th day of the same month; that the statements made of and concerning the plaintiff on the 24th day of April were made in the heat of passion, and in refutation of the abusive language used to him by the plaintiff; and that he further avers that whatever he said of and concerning the plaintiff was said in the full belief of its truth and verity, and not from any motive of malice towards the plaintiff; and that all the allegations of the complaint not specifically admitted are denied. Numerous errors are assigned by the appellant, but, in the view we take of the case, it will only be necessary to discuss those relating to the charge of the court to which the defendant excepted.

The court in its charge to the jury used the following language: "Thus you will see that, while considerable latitude is allowed in discussing the fitness of a candidate for office, yet the law is that voters and newspaper publishers are not at liberty to attack the private character of the individual, and falsely accuse him of having committed a crime against the laws of the state, and, if he does so, the only defense he will have is by proof of the truth of the charges he makes. Thus you will see, gentlemen, the plea of privilege falls to the ground. It is not sufficiently broad to constitute a defense." It will be observed that in this portion of the charge the court took the whole question of privilege from the jury, and held as matter of law that an elector is not at liberty to attack the private character of an individual, and falsely accuse him of having committed a crime against the laws of the state, though he make the charge in good faith, believing it to be true, and under circumstances making it privileged. In taking this view of the law, the court was clearly in error. The Civil Code of this state provides: "Slander is a false and unprivileged publication, other than libel, which (1) charges any person with crime, or with having been indicted, convicted or punished for crime. ***" Section 2529, Comp. Laws. It will be observed that the communication must be "false and unprivileged." The clear inference from this section is that a communication, though it charges a person with crime, may yet be privileged, and not constitute slander. The learned circuit court evidently overlooked this section of our Code, and followed the decisions of certain courts which hold that, if a person is charged with a crime, it is not privileged; but under our Code the law is otherwise, and a person may be charged with a crime, and, if the communication is privileged, he may not be liable in damages therefor. The Code also provides that "a privileged communication is one made *** (3) in a communication, without malice, to a person interested therein, by one who is also interested. ***" Section 2530, Id. It will be noticed that in this definition no exception is made as to the communication charging a crime, the only condition being that the communication be without malice, and made to a person interested therein by one who is also interested. The charge of the court, therefore, that an elector is not at liberty to accuse a party of having committed a crime against the laws of the state under any circumstances, unless he can justify by proving the truth of the charge, has no warrant, under our Code. This was the view taken by this court in the recent case of Boucher v. Publishing Co., 14 S.D. 72, 84 N.W. 237. The learned circuit court in that case used substantially the same language as that used by the court in the case at bar, and for the error in the instruction the judgment was reversed, and a new trial granted. Myers v. Longstaff, 14 S.D. 98, 84 N.W. 233.

In the very recent case of McCarty v. Lambley, 46 N.Y.S 792, ...