Tuyl v. Riner

• Decision Date: 31 December 1878
• Citation: 3 Ill.App. 556,3 Bradw. 556
• Parties: ISAAC VAN TUYLv.LEWIS RINER ET AL.
• Court: United States Appellate Court of Illinois

3 Ill.App. 556

3 Bradw. 556

ISAAC VAN TUYL

v.LEWIS RINER ET AL.

Appellate Court of Illinois, Second District.

December Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Warren county; the Hon. GEO. W. PLEASANTS, Judge, presiding. Opinion filed May 2, 1879.

Messrs. STEWART, PHELPS & GRIER, for appellant; that the burden of proving malice is upon the plaintiff, cited Wright v. Woodgate, 2 Cr. M. & R. 573; Cockayne v. Hodgkisson, 5 Car. & P. 543; Pitt v. Donovan, 1 Maule, & S. 639.

Proof must be made of damage actually sustained: Starkie on Slander, 192; Townshend on Slander, 309; Kendall v. Stone, 1 Seld. 14; Bailey v. Dean, 5 Barb. 297.

The damages are excessive: Pitt v. Donovan, 1 Maule & S. 639; Elborow v. Allen, 3 Cro. Jac.; Law v. Harwood, 4 Cro. Car.; Gerrard v. Dickenson, Cro. Eliz. 197; Am. Lead. Cas. 105.

Instructions should state the law correctly, and each instruction should be correct in itself: Grube v. Nichols, 36 Ill. 92; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550.

Vindictive damages should not be allowed: 2 Greenleaf on Ev. § 253; Chicago v. Martin, 49 Ill. 241.

Messrs. KIRKPATRICK & HANNA, for appellees; upon the question of privileged communications, cited White v. Nichols, 3 How. 266.

Falsehood and the want of probable cause will amount to proof of malice: White v. Nichols, 3 How. 266; Pitt v. Donovan, 1 Maule & S. 639; Gerard v. Dickenson, 4 Rep. 18; Cockayne v. Hodgkisson, 5 C. & P. 543; Like v. McKinstry, 41 Barb. 186; Townshend on Slander, § 206; Addison on Torts, § 1137; Chapman v. Cawrey, 50 Ill. 512; 1 Am. Lead. Cas. 128.

Re-assertion of the charges, by pleas, with no attempt to prove their truth, is evidence of malice: Beasly v. Meigs, 16 Ill. 139; Spencer v. McMasters, 16 Ill. 405.

Justification must be co-extensive with the slander: Sanford v. Gaddis, 13 Ill. 329; Darling v. Barks, 14 Ill. 46.

If claiming to act under advice of counsel, defendant must show that he fully and fairly stated to counsel all the facts: Ross v. Innis, 35 Ill. 487; Anderson v. Friend, 71 Ill. 475.

Acting under advice of counsel is no shield, but a circumstance to be considered in determining the question of malice: Townshend on Slander, § 206; Like v. McKinstry, 41 Barb. 189; Jasper v. Purnell, 67 Ill. 358.

Upon the question of damages: Starkie on Slander, 192; Kendall v. Stone 5 N. Y. 14; Townshend on Slander, § 206; Stark v. Chetwood, 5 Kan. 141; Paull v. Halferty, 63 Pa. St. 46.

The verdict will not be set aside for excessive damages unless they are so great as to lead to the belief that the jury were misled by passion or prejudice: Schlencker v. Risley, 3 Scam. 483; McNamara v. King, 2 Gilm. 432; Ross v. Innis, 35 Ill. 487; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; Drohn v. Brewer, 77 Ill. 280; Spencer v. McMasters, 16 Ill. 405; Kendall v. Stone, 2 Sandf. 269.

Courts will not reverse for trivial errors: Smith v. Binder, 75 Ill. 492; Nichols v. Mercer, 44 Ill. 250; Rice v. Brown, 77 Ill. 549; Sterling Bridge Co. v. Baker, 75 Ill. 139; Stowell v. Beagle, 79 Ill. 525; T. P. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Durham v. Goodwin, 54 Ill. 469; Town of Vinegar Hill v. Busson, 42 Ill. 45; N. L. Packet Co. v. Binninger, 70 Ill. 571; Walker v. Collier, 37 Ill. 362; Murphy v. The People, 37 Ill. 447.

Upon the question of a right to exemplary damages: Roth v. Smith, 54 Ill. 431; Donnelly v. Harris, 41 Ill. 126; Kendall v. Stone, 2 Sandf. 269; Sedgwick on Damages, 454; Field on Damages, § 25; Grabb v. Margrave, 3 Scam. 372; I. & St. L. R. R. Co. v. Cobb, 68 Ill. 53; Dobbins v. Duguid, 65 Ill. 464; Stillwell v. Barnett, 60 Ill. 210; C. & I. R. R. Co. v. Baker, 73 Ill. 316; Cutler v. Smith, 57 Ill. 252; Farwell v. Warren, 51 Ill. 467; Smalley v. Smalley, 81 Ill. 70; Becker v. Dupree, 75 Ill. 167; Johnson v. Camp, 51 Ill. 219; Best v. Allen, 30 Ill. 30; Ously v. Hardin, 23 Ill. 403; Bull v. Griswold, 19 Ill. 631; Sherman v. Dutch, 16 Ill. 283; Oard v. Oard, 59 Ill. 46.

LELAND, J.

This was an action brought by appellees against appellant for slandering the title to eighty acres of land of appellees, situated in Warren county.

Actions of this kind have rarely if ever been brought in this State, perhaps because a great deal of latitude of discussion of such subjects has been practiced and tolerated.

Without doubt, however, such an action may be sustained, where the slander is false and malicious, and where special damage results from speaking the slanderous words, such as preventing the selling or leasing the land, etc., usually, however, against a stranger, who has no interest in the title, because of the difficulty of making out a merely malicious motive in one who has an interest to protect by discussion of the question of title. If the motive, however, be not reasonable self-protection, but malice, without probable cause for speaking the words, there might be a recovery against one interested in the title.

Mrs. Lewis Riner and Mrs. Isaac Van Tuyl were sisters. Their father, Asher Davis, who was eighty-one years old in August, 1878, had in February, 1873, conveyed the alleged slandered land to Mr. and Mrs. Riner, and they had executed a contract to support Davis and his wife, who were both old and feeble, during their lives, and to bury them when dead, and this contract was the consideration for the deed.

It also appeared, however, that Davis had three daughters and three eighty-acre tracts of land; two of the daughters in this State and one in Ohio, and two of the tracts of land in Iowa, and one in this State. He conveyed one of the Iowa tracts to the Ohio daughter, Mrs Bell; the other, at the request of Mrs. Van Tuyl, to her son by a former husband, Asher D. Shauman, and the Illinois tract, which was the most valuable, to Mr. and Mrs. Riner, and they were to support and bury the old gentleman and his wife, as before stated.

This too often resorted to contrivance to save trouble, as is usual, made more instead of less, and among others came this unpleasant family law-suit.

Riner and wife desired to sell the land and go to Kansas, and the old gentleman, whose testimony does not seem to indicate any weakness of intellect, said: “I am alone. My wife is dead, and I am satisfied that I am just as near heaven in Kansas as I am here, and it don't make any difference where this old body lies when I am dead. Sell out and go, and I will go with you.” And thereupon, with the full consent of Davis, Riner and wife, in April or May, 1877, entered into negotiation with Peter Staley, and a verbal offer was made by the latter to pay $3,800 cash on Sept. 1st, 1877, or $1,800 then, and $2,000 March 1st, next, with interest at ten per cent. On September 1st a deed was tendered, and Staley declined to take it and pay the money, as he says, because Van Tuyl told him in August that his wife was legal heir to that piece of land; also Mrs. Bell of Ohio was another heir, and that if he bought he would buy a law-suit; that Mr. Davis was not capable of doing business; that Mr. Davis had not been capable of doing busifor a good many years; said he supposed Riner had a deed, but if he had a deed, had just got it from Mr. Davis some way, and he could go in and talk to Davis and he would make him a deed in some way; said old man was not at himself, and had not been for a great many years; was not capable of doing business. Asked him if he would swear Davis wasn't at himself. Said he would, and his wife would, and Isaac Shauman and his wife would, and he could get a hundred witnesses in this State and Ohio that would swear the old man not capable of doing business; said he was fearful if Riner and wife sold the land, the old man would be thrown on public charity; said he heard they were some in debt, and was afraid if they went off and spent what they had, old gentleman might come back on him to keep. Said if Riner sold out and went west would probably spend all of it, and was good deal in debt, and old man would come on him for support. Said for his part he would not move, but said his wife would not give him rest day or night, till he came to see me. Said one reason why he did not want me to buy was, that Riner might spend what he had got from the old man, and the old man would be deprived of his support, and would have to come on him. Shauman told me old man had right to support off that land. May have told me he would see the old man had his rights. Shauman did a good deal of talking. Might have said that, can't tell; can't recollect that he said that. Think he said something about the old man's support.

I proposed to take the land at same price if they would make deed good. Told Van Tuyl I would have nothing to do with it unless he and Riner would settle the thing up. Expect I would have taken it if he (Riner) had made me good deed. He said it could not be settled up, I believe. This and other evidence as to the speaking the words in the declaration, and also evidence as to the extent of the damage to the plaintiff because of the failure to sell to Staley, and on the subject of the defendants' motives being malicious, and of his intent being to enable his son-in-law and himself to sell an eighty-acre tract to Staley, as they did do, instead of plaintiff's doing so, and to enable his wife to share in the land as heir, etc., constituted plaintiff's case.

There was evidence on the part of the defense tending to show that the motives for speaking the words were not malicious, but honest and without malice, and that the damage, if any, by reason of not completing the sale to Staley, was trifling. The jury found for plaintiffs, and their verdict was as follows:

“We, the jury, find the issue for the plaintiffs, and assess the damages on the land at one thousand dollars, and exemplary damages at five hundred dollars; total, fifteen hundred dollars.” As to such a verdict being proper, see Sedgwick on the Measure of Damages, p. 573, note, and p....