Warner v. Lockerby

• Decision Date: 16 May 1881
• Citation: 8 N.W. 879,28 Minn. 28
• Parties: WARNER v LOCKERBY.
• Court: Minnesota Supreme Court

28 Minn. 28

8 N.W. 879

WARNERvLOCKERBY.

Supreme Court of Minnesota.

Filed May 16, 1881.

Appeal from judgment, county of Blue Earth.

P. A. Foster and Brown & Wiswell, for appellant.

Daniel Buck, for respondent.

MITCHELL, J.

This was an action for slander. The complaint is that at a certain time and place “defendant, in the presence and hearing of C. S. and a number of other persons, maliciously spoke of and concerning the plaintiff herein the false and defamatory words following: “You had better go and pay for that overcoat you stole;” whereby the plaintiff was injured, etc. The answer contains a general denial, and then, in mitigation of damages, alleges that at the time and place alleged in the complaint the plaintiff and defendant met and plaintiff addressed to defendant certain insulting and provoking language, and that whatever was then and there said by defendant to plaintiff was said in the heat of passion produced by the misconduct of plaintiff. Upon the trial plaintiff produced C. S. as a witness, and offered to prove by him the speaking to the plaintiff by defendant, at the time and place alleged in the complaint, in the presence and hearing of the witness, of the supposed defamatory words alleged in the complaint. This evidence was by the court, upon defendant's objection, excluded, and plaintiff duly excepted, and the plaintiff having offered no other evidence the court directed a verdict for defendant. Defendant having failed to enter judgment on this verdict, the plaintiff himself caused judgment to be entered in accordance with the verdict, and from that judgment appeals to this court.

The respondent makes the point that the appellant, having himself caused the judgment to be entered, is estopped from appealing from such judgment. There is nothing in this point. Either party may cause judgment to be entered in accordance with the verdict. The defeated party may cause this to be done so that he may be placed in a position to take his appeal.

The only other question to be considered is whether the court erred in excluding the evidence offered by plaintiff to prove the allegations of the complaint. It is unnecessary to consider in detail the objections made by defendant to the admission of this evidence. The offer of plaintiff was simply to prove the allegations of his complaint. There could be but one ground on which such evidence could be properly excluded, and that is the insufficiency of the complaint. To exclude it on any other ground, under the circumstances, would necessarily be error.

It therefore is only necessary to consider whether the complaint, on its face, states a cause of action. We think it does. The material allegations in a complaint for slander, where the words are on their face slanderous per se, as in this case, and in the English language, are (1) that defendant, with malice or...