Ward v. Ward

• Decision Date: 07 April 1900
• Parties: WARD v. WARD.
• Court: West Virginia Supreme Court

35 S.E. 873

47 W.Va. 766

WARD v. WARD.

Supreme Court of Appeals of West Virginia.

April 7, 1900

Submitted February 1, 1900

Syllabus by the Court.

1. When the court instructs the jury that if they believe, from the evidence, certain hypothetical facts mentioned in the instruction, they must find for the party plaintiff or defendant, as the case may be, but omits from such statement of facts a material fact, which, being believed from the evidence, would require a different verdict, such instruction is erroneous, and, if excepted to, and not cured, is ground for reversal.

2. An erroneous instruction on a material point is presumed to be the prejudice of the party appealing against whom it is given, and will cause reversal, unless it clearly appears from the record that it was harmless.

3. Instructions must not be inconsistent with each other. A bad instruction is not cured by a good one, though they be given on the motion of adverse litigants.

4. The question as to whether the occasion on which the words were uttered in an action for slander was one of absolute or qualified privilege is one for the court. If absolute, the defendant is entitled to judgment; if, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice.

5. A qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one but where it is of a moral or social character of imperfect obligation.

6. In such a case the defendant may, under the general issue, show that the alleged defamation consisted in a communication made by or to persons interested in the subject-matter of the communications, although they affect the character or credit of the plaintiff.

Error to circuit court, Barbour county; John H. Holt, Judge.

Action by Ira Ward against Taylor Ward. Judgment for plaintiff, and defendant brings error. Reversed.

W. T Ice and Samuel V. Woods, for plaintiff in error.

Dayton & Dayton, M. Peck, and F. O. Blue, for defendant in error.

ENGLISH J.

This was an action of trespass on the case, brought by Ira Ward against Taylor Ward, his brother, in the circuit court of Barbour county, on the 26th of December, 1896, claiming damages to the amount of $25,000 on account of certain defamatory words alleged to have been uttered by the defendant in regard to the plaintiff's pecuniary condition. The words alleged to have been uttered by the defendant, as set forth in plaintiff's declaration, are as follows: "That he (meaning plaintiff) was broke up (meaning that the plaintiff had become so involved financially as not to be able to continue as therefore his business, and that he had become insolvent, and unable to pay his debts); that he (meaning plaintiff) was broke up, and could not pay his debts (meaning that plaintiff had become insolvent); that he (meaning plaintiff) was broken up worse than Joe Smith, and could never pay his debts (meaning that plaintiff had failed in business, become more insolvent than Joe Smith, and would never, by reason of their magnitude, be able to pay his debts); that he (meaning plaintiff) was broke up (meaning that he had failed in business, and become insolvent), and he (meaning himself,--defendant) intended to put him (meaning plaintiff) in the road (thereby meaning that the defendant intended selling out by legal process the property, real and personal of plaintiff, and, by depriving him of his home and property require him to leave the same in abject poverty); that if he (meaning plaintiff) had known that the Bank of Buckhannon was going to get out that attachment (meaning a certain execution issued from the circuit court of Upshur county against Joseph Smith, Jane Smith, and plaintiff, as surety, for $966.68, with interest from February 12, 1894, and $14.01 costs), he (meaning plaintiff) would have put all his (meaning plaintiff's) property out of his (meaning plaintiff's) hands (thereby meaning and intending that, if plaintiff had known beforehand that said execution would issue, that he, plaintiff, would have fraudulently and corruptly disposed of his property for the purpose of cheating and defrauding said bank and his other creditors out of payment of their debts against him)." On the 4th of March, 1898, the defendant appeared, and pleaded not guilty, and issue was thereon joined. On June 3, 1898, the cause was submitted to a jury, and later resulted in a verdict for the plaintiff for $7,500 damages. The defendant, by his counsel, moved the court to set aside the verdict, and grant a new trial, which motion was overruled, and judgment rendered upon the verdict. The defendant excepted, and took a bill of exceptions.

During the trial, the court, at the instance of the plaintiff, gave the jury the following instructions: "No.1. The court instructs the jury that slander is the defamation of a man with respect to his character, or his trade, profession, or occupation, and in this case has reference only to his trade and business, by word of mouth; and if they believe, from the evidence, that the defendant, Taylor Ward, uttered any or all of the slanderous words charged in the plaintiff's declaration, maliciously, intending to damage the plaintiff Ira Ward, in his trade, profession, or occupation, and that said Ira Ward was damaged by said slanderous utterances from Taylor Ward, they should find for the plaintiff. No. 2. The court instructs the jury that if they believe, from the evidence, that the slanderous words, or any of them, charged in the plaintiff's declaration, were uttered by the defendant, Taylor Ward, against and about the plaintiff, Ira Ward, the law will presume that the said words were uttered maliciously, and with intent to injure the plaintiff, and the burden is on the defendant to show that the words were privileged; and if the jury further believe, from the evidence, that the defendant has failed to show that said words were privileged, then they should find for the plaintiff." "No. 6. The court instructs, the jury that if they believe, from the evidence, that the defendant, Taylor Ward, spoke and published the slanderous words, or any of them, charged in the plaintiff's declaration mentioned in the manner and for the purpose charged therein against him, and that said slanderous words so spoken damaged the plaintiff in his trade or occupation, then they should find for the plaintiff; and the court further instructs the jury that they are the judges of the amount of damages to which the plaintiff would be entitled under the evidence." "No. 10. The court instructs the jury that if they believe, from the evidence, that the defendant, Taylor Ward, uttered the slanderous words, or any of them, as laid in the plaintiff's declaration, or any of them in response to private inquiries made of him concerning the plaintiff, such replies or answers made to such inquiries do not excuse the defendant from liability to the plaintiff, unless the jury believe, from the evidence, that the defendant, Taylor Ward, honestly believed in the truth of the said charges made by him at the time he made them, and unless the jury further believe from the evidence that his said charges were in direct response to the said injuries, and were not...