Smith v. Moore

• Decision Date: 12 February 1902
• Citation: 52 A. 320,74 Vt. 81
• Parties: SMITH v. MOORE.
• Court: Vermont Supreme Court

52 A. 320

74 Vt. 81

SMITH

v. MOORE.

Supreme Court of Vermont. Washington.

Feb. 12, 1902.

Exceptions from Washington county court; Rowell, Judge.

Action by Edgar F. Smith against Hiram G. Moore. Judgment for plaintiff and defendant brings exceptions. Affirmed.

Argued before TAFT, C. J., and TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

J. P. Lamson and F. L. Laird, for plaintiff.

Charles E. Woodward, Jr., and Frank Plumley, for defendant.

TYLER, J. Action, case, for slander; plea, the general Issue; trial by jury; verdict and judgment for plaintiff. At the time of the alleged slander the plaintiff was in the employ, as butter maker, of the Plainfield Co-operative Creamery Association, which was a corporation duly organized; and it was his duty to test the milk of the patrons, ascertain the amount of butter fat, weigh each patron's milk, weigh the butter, keep a correct record of the quality of the milk, its weight, and the weight of the butter produced from it, and keep correct accounts with each patron. He had been in such employ since August, 1897, and for several years previous thereto he had had like employment with other creameries. The defendant was a farmer having a large dairy, had been one of the leading promoters of this creamery and its first president, and at the time in question was a patron and the largest stockholder. It appeared that upon the fairness and reliability of the milk test made by the plaintiff depended the fairness and reliability of the division of the proceeds of the business among the patrons, which was made each month, and that to raise or lower the test at any time raised or lowered the income. These tests were made monthly, and the average was thus obtained, and the division of proceeds among the patrons was made on the monthly average of butter fat shown by the test. The defendant became dissatisfied with his test as made and stated by the plaintiff, and accepted and acted upon by the managers, and adopted means to make tests of his milk for himself; and he had tests made at another creamery, and also sent samples to the Vermont experiment station, and had received written reports thereof. From these investigations his testimony tended to show that he became satisfied that his tests were wrong, and that he was not getting his rightful share of the proceeds of the creamery; that he was especially convinced of this from the reports from the experiment station; and that the alleged slanderous words were uttered soon after his receipt of that report, and in consequence thereof. He claimed that his statements were privileged, because of his relation to the creamery as above stated, and that what he said was to officers of the creamery, in an effort to obtain a redress and prevent further damage to himself. The court held that both of these occasions were prima facie privileged, and charged on that subject in a manner satisfactory to the defendant.

1. The witness called by the plaintiff tesified to a conversation that he had with the defendant November 15, 1899, which tended to support the declaration. He then called another witness, and offered to prove by him as a further ground of recovery, certain words spoken by the defendant in the conversation had with the witness November 16th, to which the defendant objected for the reason assigned, that the recovery could only be for words spoken on one occasion, and that the plaintiff had elected November 15th. The plaintiff's counsel then asked leave to elect over, which the court granted, and the plaintiff chose to stand by the conversation of November 16th, and the witness testified to that conversation. To this the defendant excepted. There was no error in this ruling. The conversation on the 15th was abandoned as a ground of recovery, and that on the 16th substituted for it. It is true that the two conversations were thus placed before the jury, and probably had an effect upon them; but conversations made before and after the one relied upon as ground of recovery, and even those had after the bringing of the suit, may be given in evidence for the purpose of showing the defendant's animus, and to enhance exemplary damages. It is also held proper to include in a single count, as ground of recovery, words spoken at different times and to different persons in relation to the same subject Hoyt v. Smith. 32 Vt. 304.

2. The words spoken by the defendant by which ho charged that the plaintiff had been discharged from other places for dishonesty were part of the defendant's speech wherein he called the plaintiff a "thief." Therefore proof of those words was proper, although calling the plaintiff a "thief" was an entire charge.

3. The plaintiff asked a witness if there was "any rumor" in Plainfield and vicinity that the defendant had accused the plaintiff of stealing and being a thief in connection with his work at the creamery, to which the defendant objected that this evidence would only tend to show an "individual rumor." This, however, does not seem to have been the purport of the question. The word "rumor" signifies a flying or popular report,—the common talk. Therefore "any rumor" meant any current report, and not the remarks of a single person. That it had become a current report that the defendant had made this charge was proper to be shown, as bearing upon the question of damages. It was so held in Nott v. Stoddard, 38 Vt. 25, 88 Am. Dec. 633, and in Crane v. Darling, 71 Vt. 295, 44 Atl. 359. The repetition of a slander, so far as it is the result of the defendant's wrongful act. is always competent to be shown in evidence.

4. That the defendant at the time of the speaking of the words held, and for five years before that time had held, certain town offices, was a fact proper to be shown by the plaintiff, as bearing upon the extent of the in-Jury likely to have been suffered by him. It is elementary that the social relation and standing of the parties to an action for slander may be shown and considered on the question of damages,—that of the plaintiff, because it tends to show the value of the character and reputation for the injury to which he brings the action; and that of the defendant, because it tends to show the weight which may be attached to his words, and his consequent power to inflict an injury by defamation of another. 18 Am. & Eng. Enc. Law, 1095, and cases cited. In the same work it is stated that "it would seem obviously proper that the character of...