Saladi No. v. Gurdy

• Decision Date: 01 November 1921
• Docket Number: No. 1754.,1754.
• Citation: 116 A. 436
• Parties: SALADI NO. v. GURDY.
• Court: New Hampshire Supreme Court

116 A. 436

SALADI NO.

v. GURDY.

No. 1754.

Supreme Court of New Hampshire. Grafton.

Nov. 1, 1921.

Transferred from Superior Court, Grafton County; Allen, Judge.

Action by Joseph Saladino against James N. Gurdy. Judgment for plaintiff. Case transferred. Exception overruled.

Proof by the plaintiff of actual malice on defendant's part was necessary. As tending to show it, evidence was admitted that other litigation between the parties, brought at about the time the slander was committed, was determined in the plaintiff's favor. The evidence was admitted in connection with other evidence tending to show the malicious character of the litigation. The defendant objected to all evidence of the litigation and its outcome, and excepted to its admission.

The court instructed the jury without exception that—

"The outcome of the other lawsuits in the plaintiff's favor is not conclusive in showing malice on the defendant's part, but, if you find, taking into account all the evidence, that the defendant brought a suit against the plaintiff in bad faith, that would indicate a general disposition of ill will or malice on the defendant's part, and thus be applicable, if you so consider it, to his statement which is claimed by the plaintiff to be slanderous."

There was no request for any modification or limitation of this instruction.

Robert W. Upton, of Concord, and Scott Sloane, of Lebanon, for plaintiff.

Fred S. Wright, of Woodsville, and Owen & Veazey, of Laconia, for defendant.

PLUMMER, J. The evidence tended to prove the following: The plaintiff and defendant had been engaged in farming operations for some two years prior to the alleged slander. On the 10th of April, 1919, the defendant came to the plaintiff's house, when the plaintiff was away in New York on business, and demanded that the plaintiff's wife give him a note for $1,000, claim- ing that the plaintiff owed him that amount, although he had never rendered the plaintiff any statement showing such, or any, indebtedness. The plaintiff's wife denied the indebtedness, and said she would go over the books and show him. He answered that he did not want any books. Then she told him he would have to wait until her husband came home. He said he did not want to see him; in fact he had rather see him in Orford cemetery. Then the defendant stated in substance that the plaintiff went to New York, not on business, but to see another woman, and that statement is the foundation of the present suit.

The next day the defendant came again, and told the plaintiff's wife, if she did not give him a note for $1,000, he would go to Woodsville and put them in trouble. She refused, and he immediately ordered suit brought. Subsequently the plaintiff commenced an action against the defendant relative to the same transactions. There was evidence that the attachment made by the defendant in his suit was excessive, and other evidence tending to show its malicious character. This evidence, as it appeared that the litigation was determined in favor of the plaintiff, authorized a finding that almost contemporaneously with the utterance of the alleged slander the defendant without probable cause brought an unfounded suit against the plaintiff, and would furnish a foundation for a suit for malicious prosecution.

If the fact of a malicious prosecution by the defendant against the plaintiff was competent, the evidence necessary to establish that fact was necessarily admissible. To maintain such a prosecution the plaintiff in such a suit must prove the termination in his favor of the suit alleged to be malicious. Cohn v. Saidel, 71 N. H. 558, 565, 567, 53 Atl. 800. An adverse judgment in the former suit would establish that "that suit was not brought without probable cause" (Friel v. Plumer, 69 N. H. 498, 499, 43 Atl. 618, 76 Am. St. Rep. 190) and be fatal to the maintenance of a suit for malicious prosecution.

"In actions of slander, evidence of the repetition of the same words, or of other words and acts of the defendant, tending to show his malice in uttering the words laid in the declaration, was admissible, whether such words or acts were themselves actionable or not." Severance v. Hilton, 32 N. H. 289, 293; Symonds v. Carter, 32 N. H. 458; Chesley v. Chesley, 10 N. H. 327. "You may give in evidence any words as well as any act of the defendant to show, quo animo, he spoke the words which are the subject of the action." Merrill v. Peaslee, 17 N. H. 540, 543.

As to what other utterances of the defendant are admissible to show malice there is a wide difference in the rules in the different states. 1 Wigmore, Ev. §§ 403-406. In some the rule of admissibility is confined to a repetition of the same charge. Watson v. Moore, 2 Cush. (Mass.) 133, 137, cited by the defendant and other Massachusetts cases. I Wigmore, Ev. p. 497. See, however, Commonwealth v. Damon, 136 Mass. 441, 449. But this is not the rule in this state. Moreover, acts, not words, are now in question.

"Anything defendant has ever said or done with reference to the plaintiff may be urged as evidence of malice. It is very difficult to say what possible evidence is inadmissible on this issue. The plaintiff has to show what was in the defendant's mind at the time of publication, and of...