Taylor v. Gumpert

• Decision Date: 07 November 1910
• Citation: 131 S.W. 968,96 Ark. 354
• Parties: TAYLOR v. GUMPERT
• Court: Arkansas Supreme Court

131 S.W. 968

96 Ark. 354

TAYLOR v. GUMPERT

Supreme Court of Arkansas

November 7, 1910

Appeal from Drew Circuit Court; Henry W. Wells, Judge; affirmed.

Judgment affirmed.

R. W Wilson, for appellant.

Whether there was actual or express malice was a question for the jury, and instructions which take away this question from the jury are erroneous. 56 Ark. 494-501; Id. 94-98.

The burden of proving malice is on the plaintiff. Newell on Slander, 827, 323; 129 S.W. 807. Where express malice on the part of the defendant is not shown by the evidence, exemplary or punitive damages can not be recovered. 25 Cyc. 536 (b) (1); Id. 539 (5); 56 Ark. 94. The award of $ 300 for compensatory damages was contrary to the evidence. In estimating compensatory damages the jury should consider all matters relevant to show the extent of the injury done by words; and, without evidence to show injury to plaintiff's reputation, health, business, cost of litigation, or touching future damages, a verdict for compensatory damages is contrary to law. 25 Cyc. 532. The motion for continuance should have been granted. The error of the clerk in issuing the subpoena for the witnesses to appear in a different case, a mistake for which appellant was not responsible, prevented his obtaining their attendance. The court's ruling was contrary to the statute, § 6173 Kirby's Digest, and a clear abuse of discretion. 14 Cyc 384-5; 10 Ark. 527; 21 Ark. 460; 22 Ark. 106; 42 Ark. 273; 9 Cyc. 172-3; 4 Ala. 303, 310.

Williamson & Williamson, for appellee.

1. The appeal should be dismissed because appellant has failed to abstract the evidence offered by the parties at the trial, without which the court has not before it "such statements from the record as are necessary to a full understanding of all questions presented to the court for decision."

2. There was no abuse of discretion in overruling the motion for continuance. No diligence was shown. 94 Ark. 538; 40 Ark. 114.

3. Uttering words which are slanderous per se implies malice, and proof of such uttering is proof of malice such as to justify an award of compensatory damages. 95 Ark. 199, and cases cited. The jury were properly instructed both as to compensatory and punitive damages and as to the burden of proof.

OPINION

FRAUENTHAL, J.

This is an appeal from a judgment awarding damages for slander. It was alleged that the slanderous words were uttered and spoken of and concerning Mrs. Agnes Gumpert, the plaintiff below, and the jury returned a verdict in her favor for $ 300 compensatory and $ 100 punitive damages. A number of witnesses testified upon the trial of this case, but the appellant has failed to set out the testimony of these witnesses in his abstract. As has been repeatedly held by this court, we indulge the presumption that the testimony adduced upon the trial of a case is sufficient to sustain the verdict of the jury when such evidence is not set out in the abstract. France v. Shockey, 92 Ark. 41, 121 S.W. 1056. The appellant has set out in his abstract of the case all the instructions that were given. In as much as the appellant has failed to abstract the testimony, none of these instructions can be said to be erroneous if they were justified by any evidence that was competent to establish the issue involved in this case, because it will be presumed that such evidence was introduced upon the trial. Upon an examination of these instructions, we do not find that any of them was inherently wrong. In effect, the court instructed the jury that the plaintiff was entitled to recover compensatory damages if the words set out in the complaint were uttered and published by the defendant. These words were defamatory of the plaintiff, and were not only of a nature tending to disgrace and degrade her and hold her up to public contempt and cause her to be shunned, but they charged her with the commission of such immoral acts as under our laws would be criminal. The words were therefore actionable per se. Murray v. Galbraith, 86 Ark. 50, 109 S.W. 1011.

Where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to introduce evidence of actual damages to entitle him to recover substantial damages. In such case the plaintiff need not prove special damages in order to recover substantial damages. Murray v. Galbraith, 95 Ark. 199, 128 S.W. 1047; 25 Cyc. 490.

The instructions relative to punitive damages which were given by the court were not erroneous if they were warranted by testimony introduced at the trial, and we presume that such was the case.

It is urged by counsel for appellant that the court erred in refusing to grant him a continuance. It appears that the complaint in this case was filed on October 6, 1909, and summons thereon was duly served on appellant on October 30 1909. The court to which the summons was returnable convened on February 14, 1910, and the cause was set for trial...