Stallings v. Whittaker

• Decision Date: 27 February 1892
• Citation: 18 S.W. 829,55 Ark. 494
• Parties: STALLINGS v. WHITTAKER
• Court: Arkansas Supreme Court

18 S.W. 829

55 Ark. 494

STALLINGS v. WHITTAKER

Supreme Court of Arkansas

February 27, 1892

APPEAL from White Circuit Court, MATTHEW T. SANDERS, Judge.

Judgment reversed and cause remanded.

J. E Gatewood, for appellant.

The latter part of instruction No. 1 is not the law. The identical words must be proven as alleged. Newman, pp. 424 674; Newell, pp. 804-5, sec. 50; ib., p. 808, notes 21, 22; ib., 807, note 19. Odgers on Libel and Slander, p. 435. It is wrong because it does not instruct the jury that the testimony must be given in a judicial proceeding, and that it was material to the issue. Newman, p. 315; Newell, p. 122 sec. 52; ib., 126. If the testimony was not material to the issue, an action for slander could not be maintained. Newell, p. 127, note 17; 19 Ark. 346. It is wrong, because charging one with swearing to a lie does not necessarily imply perjury. Newell, p. 123, sec. 55; 12 Ark. 526. To say "that plaintiff had sworn to a lie," is not per se actionable. Newell, p. 125; 24 Ark. 602; Newell, p. 126, note 6; ib., 127. See also Bish., Non-Cont. Law, sec. 277.

2. The third instruction makes an arbitary rule for the action of the jury, not warranted by law. If defendant failed to prove his plea, it was simply a failure, and the jury would find for plaintiff, but his evidence should have been considered in mitigation of damages. Mansf. Dig., sec. 5070; Lawson, Rights and Rem., sec. 1304; Wood's Mayne on Dam., p. 645; Field on Dam., p. 533. All that is necessary is that the proof substantially supports the plea. Newell, pp. 796, 798.

3. The sixth instruction is error. There can be no vindictive or punitive damages without malice, special ill-will or bad intent. Newell, note 9, p. 845; ib., note 12, p. 846; Lawson's R. & Rem., sec. 1302; 13 A. & E. Enc. Law, p. 443, note 1; 13 Am. St. Rep., 451; 2 id., 287; Sedg., Dam., 35; Field on Dam., p. 533, sec. 694. Malice is the gist of the action and the principal element of damage. Wood's Mayne on Dam., p. 615, and note. The question of malice is utterly ignored in the instruction. 13 Am. St. Rep., 452; 11 id., 65. Without malice the damages are compensatory merely. 5 Cent. Law Journal, p. 283; Newell, p. 845, note 9; ib., 846, note 12; 1 Am. Rep., 608. The seventh is wrong for the same reason.

4. The instructions asked by appellant correctly embody the law. There can be nothing but compensatory damages where there is no malice. Under our code the question of malice is one exclusively for the jury, and is not presumed, and it follows that when no malice is shown or actual damages proven, the damage is merely nominal. The variance between the allegata and probata is fatal. Thompson on Trials, sec. 2260.

George Sibley for appellee.

All the material averments, except damages, are admitted; there only remained the question of fact to be determined by the jury, did or did not plaintiff swear a lie as stated. The jury found by their verdict in favor of plaintiff, and its finding is sustained by the evidence. Our statute makes the words spoken actionable per se, and hence the rule laid down in 24 Ark. 602, is not now the law. Mansf. Dig., sec. 1814; Townshend, L. & S., secs. 367-8. Instruction No. 1 was properly given. Bishop on Non-Contr. Law, sec. 277. To charge one with a crime punishable by indictment is actionable. Ib., sec. 264. The third instruction properly given. Bish., Non-Contr. Law, sec. 289; Townsh., L. & S., p. 598 n 1, and p. 602, sec. 359, p. 659, secs. 400, 404; Odgers, L. & S., 169, 174, 176, 274, 485, 542. No evidence of actual damages need be proved when the words are actionable per se. Odgers, L. & S., 543, pp. 289, 291, 292, etc. When actual ill will is shown, exemplary or vindictive damages may be awarded. Townsh., L. & S., pp. 520, 521, note 1; 18 P. 668; 6 Hill, 467. Vindictive damages are awarded as punishment against a wrong-doer, and not as a compensation for the injured person. 64 Iowa 146; Bish., Non-Contr. Law, secs. 275, 310; 2 Sedg., Dam., 336; 13 A. & E. Enc. Law, pp. 433-4, and notes; 1 Sedg., Dam., p. 35, etc.

OPINION

HUGHES, J.

This is an action for slander, in which the plaintiff charges in his complaint that the defendant maliciously and falsely charged him with having sworn falsely when giving evidence as a witness on a trial before a justice of the peace. For defense to the action, the defendant in his answer says that he is not guilty. He denies malice, evil design, intention to injure the plaintiff or deprive him of the means of earning a livelihood. He denies that the plaintiff was damaged by reason of the speaking of the words, and pleads justification. The jury returned a verdict for the plaintiff in the sum of $ 1000. A motion for a new trial was filed and overruled. Defendant excepted and appealed, having saved exceptions to the giving of instructions one, three, six and seven, the giving of which were insisted upon, in the motion for a new trial, as a ground for reversal of the judgment.

The defendant's plea of justification is as follows: "And defendant says that plaintiff did swear and testify falsely in regard to a material fact testified to by him on trial of said cause named in his complaint, except the style, and upon said trial said plaintiff (meaning defendant in that case, Whittaker) offered himself as a witness in his own behalf, and was then duly sworn according to law to speak the truth, the whole truth and nothing but the truth, in the case in question in said suit, said justice of the peace, F. M. Robinson, administering to him said oath, and then and there having sufficient and competent power and authority to administer the said oath to plaintiff in that capacity, and it was material in said trial to ascertain what was the consideration of said note, or for what it was executed, and the plaintiff being duly sworn as aforesaid upon the trial aforesaid, and upon his oath aforesaid, did then and there upon said trial on said day falsely, wickedly, maliciously and corruptly and by his own act and consent, say, depose and swear and give the jurors sworn to try said cause and the court to understand that said note was not given or executed for merchandise, but for the release of a cow which L. C. Stallings, one of the plaintiffs, had in his possession belonging to his co-defendant, A. N. Waller, which testimony of plaintiff was false and untrue. Wherefore defendant at the time alleged did charge plaintiff with having sworn a lie upon the trial, and says it was lawful for him to do so because the said charge was true."

The admissions in this plea of the jurisdiction of the justice of the peace who tried the cause in which the plaintiff is charged to have sworn falsely, and that the testimony in which the false swearing occurred was material, and that the defendant did charge the plaintiff with having sworn a lie on the trial as charged in the complaint, except as to the style of the cause in which the testimony was given, leave nothing to be considered by this court save the questions of law which arise upon the instructions given by the court.

The variance between the statement of the style of the case before the justice of the peace in the complaint, and the style of the case as shown by the evidence, is not material. It is unsubstantial, and could have worked no prejudice to the defendant. Mansf. Dig., sec. 5075; Clements v. Maloney, 55 Mo. 352.

The first instruction given is as follows: "If the jury find, from the evidence or the admissions of the defendant in his answer, that the defendant, on or about the day named in the plaintiff's complaint, did, in the presence of divers persons or even one person, say of and concerning the plaintiff such words as are set forth in the complaint, 'that the plaintiff had sworn to a lie,' or used such words as amount to charging the plaintiff with swearing falsely, or with having sworn falsely, or did utter or publish words of or to or concerning the plaintiff, which in their common acceptation would amount to such a charge, the words are actionable of themselves, and no special damage need be proven, and you will find for the plaintiff. And the words spoken by the defendant of and concerning the plaintiff are to be taken to mean what it is apparent the defendant intended them to mean according to the common understanding of language in its common acceptation and use. "

We are of the opinion there was no error in this instruction. The first part of it is admitted by counsel for the appellant to be correct. The appellant says the latter clause is erroneous, because the plaintiff is required by law to prove the identical words importing the slander, as they are charged in the complaint; that similar words or words of similar import will not satisfy the rule. If we concede the proposition to be correct, which we do not concede, still the plea of justification admits that the words were spoken as charged--only denying that the style of the case in which the plaintiff testified before the justice of the peace as stated in the complaint is the same as that shown by the evidence, which we have said was not material, etc.

The plea admits that the words were spoken of and concerning the testimony given by the plaintiff on the trial of a cause before a justice of the peace. The charge that the plaintiff swore falsely in his testimony, which was material to the issue to be tried, on the trial of the cause by a justice of the peace who had jurisdiction of the cause in which the plaintiff was sworn to testify, is a charge...