Kidder v. Bacon

Tyler, J. 1. As to the two occasions, — August 22 and 24, — on which the plaintiff relied as grounds of recovery: It was not material that both occasions were alleged in the declaration as August 22. As there were two'' counts there might have been a recovery upon each count. .The case falls within no exception to the rule that the precise time is not material and need not be proved as alleged. 1 Chit. PI. 258; Steph. PI. 295; 13 Ency. PI. & Pr. 60, 67. The variance between the pleading and proof was immaterial. — 272 — 2. The court could not hold, without hearing the evidence, that the communication by the defendant to the school committee was privileged, for under the cover of privilege the defendant might have spoken the words in malice. It is for the jury to decide whether or not the words were spoken. The defendant did not justify in his pleading, nor claim in his testimony, that he saw the plaintiff and Dr. Ellis in the act of adultery; on the contrary he denied having spoken to Clark the words alleged. If, upon the evidence, the jury had found that the words were spoken and were false, there was no question of privilege. 3. The defendant claims, a variance in the words proved from those alleged in the declaration. It was said in Smith et al. v. Hollister, 32 Vt. 695, — ■ a case cited by both parties,— that to maintain an action for slander, the substance of the alleged charge must be proved in substantially the same words laid in the declaration; that any mere variation in the form of expression only is not material, but the words alleged cannot be proved by showing that the defendant expressed the same meaning in different words. This may be construed to- mean that, while a variation in the form of expression is not material, different words from those alleged cannot be proved; and yet the court said, “substantially the same words laid in the declaration.” There is a better statement of the rule in Hazelton v. Weare, 8 Vt. 480: “It is a rule laid down in all the books that in an action for slander the words constituting the slanderous charge must be set forth. And, to avoid inconvenience from the strictness of this rule, some slight relaxation is permitted in the evidence. This need not correspond in every minute particular with the words as laid, provided the identity of the charge is substantially made out.” In Sel. N. P, 1267, it is said that it is sufficient to prove the substance of the words; in 1 Chit. Pl. 382, that it is not — 273 — sufficient to prove equivalent expressions; in 13 Ency. Pl. & Pr. 63, that the old rule in slander that the words must be proved precisely as laid in the declaration is obsolete, and that now the action will be sustained by proof that the defendant spoke words concerning the plaintiff, slanderous in their natural and obvious meaning, and the same in substance as those stated in the declaration. Applying this reasonable rule, there was no variance. The allegation in the first count is: “I discovered them in the very act of adultery.” In support of this charge the plaintiff’s witness, Clark, testified that the defendant told him that he “see” them in the very act, and in another connection he testified that he “saw” them in the very act. Th,e words charged in the second count are: “I caught them in the very act,- — ’the act of adulterythe proof by the witness Untiedt was that the defendant told him he “catched” them in the very act. It must be held that the words proved were in substance as alleged. 4. The declaration alleges that the words were spoken of the plaintiff in her character as a school teacher, and that she sustained special damage thereby; therefore evidence was properly admitted in her opening case in respect to her reputation and standing as a teacher before the speaking of the words. Eor the same reason it was competent for her to show that, in compliance with the demand of the school committee, she resigned her position as teacher. All the evidence introduced by the plaintiff tending to show her reputation and standing as a teacher before the alleged slander, and loss of employment in that capacity in consequence thereof, was admissible. 5. Evidence was admitted upon the question of damages to show that between August 11 and December 9, 1898, it was currently reported in other towns that the defendant had accused the plaintiff and Dr. Ellis of committing adultery with — 274 — each other;.also to-show hoiw current and general said reports had been in those localities. That this was admissible, if the reports were caused by the slander, was settled in Nott and Wife v. Stoddard, 38 Vt. 25, 88 Am. Dec. 633, and reaffirmed m Crane v. Darling, 71 Vt. 295, 44 Atl. 359, for the valid reason that greater injury might accrue to- the plaintiff in consequence of the repetition of the slanderous words by others, but not as an additional ground of recovery. Driggs v. Burton, 44 Vt. at p. 144. 6. The testimony of C. W. Ellis was properly admitted. It was that defendant told him the same story, in substance, that other witnesses had testified to, with the exception of omitting the charge of adultery. It was for the jury to- determine whether or not the defendant intended to< have the witness Ellis understand that he saw the parties in the act of adultery, or that they were in the act, though he did not charge it. This evidence was not relied upon to sustain the declaration, but as tending to show malice, and as bearing upon the question of exemplary damages. Charges other than those stated in the declaration, but of a similar character, may be proved in an action for slander, not as a substantive ground of recovery, but as tending to show malice. Cavanaugh v. Austin, 42 Vt. 576. 7. It was not error to admit evidence in respect to- the defendant’s pecuniary means. The plaintiff may show, in aggravation of damages, the fact that the defendant is a man of wealth and standing in the community. Brown v. Barnes, 39 Mich. 211, 33 Am. Rep. 375; Humphries v. Parker, 52 Me. 502; Rea v. Harrington, 58 Vt. 181, 2 Atl. 475, 56 Am. Rep. 561; 13 Am. & Eng. Ency. 438. Where exemplary damages are awardable, as in this case, the defendant’s pecuniary ability may be considered in order toi determine what would be a just punishment for him. His ability to pay is a proper element for consideration: Earl v. Tupper, 45 Vt. 275. — 275 — 8. It is well settled that when the words spoken are actionable the jury have a right to consider the mental suffering which may have been occasioned to a party by the publication of the slanderous words, and to> allow damages therefor. 2 Gr. Ev. s. 420; 8 Am. & Eng. Ency. 658; Nott and Wife v. Stoddard; Rea v. Harrington. There is no reason, therefore, why evidence of the mental pain and anguish should be confined to the plaintiff herself. Any person who observed symptoms of her mental condition could testify to the fact. ' In respect to expressions of mental or physical pain the rule is thus stated in 1 Gr. on Ev. s. 102: “Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its- existence. And whether they were real or feigned is for the jury to determine.” See Abbott’s Trial Ev. p. 751 and notes. That exclamations are admissible to prove the existence of pain is established by abundant authority. See cases cited in note (a) 1 Gr. Ev. s. 102, and in notes to Baker v. Kelly, (Miss.) 93 Am. Dec. p. 280; State v. Howard, 32 Vt. 380, 78 Am. Dec. 609. Statements of a sick person when the nature of his illness is in issue, made to a physician or other attendants during his sickness, relative to the nature, symptoms and effect thereof, are admissible. ' People v. Vernon, (Cal.) 95 Am. Dec., notes, p. 66; State v. Fournier, 68 Vt. 262, 35 Atl. 178; Brown v. Mount Holly, 69 Vt. 364, 38 Atl. 69. 9. A witness produced by the plaintiff, having testified to her mental state on an occasion, was asked: “What did she then say about her present — her then present — feelings ?” The answer was; “she said, ‘Oh, why did Mr. Bacon tell such an — 276 — awful lie ? why did he tell such an awful lie?’ ” and as a further part of her answer she said, “It is worse than death; my good name is all I have,” and the witness stated that the plaintiff then wrung her hands and seemed beside herself with grief. We think there was error in the holding that these expressions were evidence tending to- characterize the plaintiff’s then present feelings. They were not exclamations of present pain, nor -expressions of present symptoms, but declarations as to the cause of them; they were statements in respect to a past occurrence. They were the same in effect as if the plaintiff had told the witness that the defendant had previously told awful lies about her, and that the knowledge of their circulation was the cause of her mental distress, which would clearly have been inadmissible. Rob. Dig. 286, 287, pl. 205-209 inclusive. 10. The testimony of Mrs. Blanchard that she made an arrangement with Dr. Ellis on the morning of August 11, by which he was to visit her at quarter before ten that evening, was properly admitted. It Was a mere circumstance, which called the attention of the witness to- the actual time of the visit, and tended to- show that he was not at the place testified to by the defendant. 11. The witness Untiedt testified that the defendant used the expression in the presence of himself and Clark, “I catched them in the very act, — the act of adultery,” as is charged in the second count; that Untiedt then asked the defendant if he meant to say that he actually caught them in the act; arid that he replied that he did not, because it was too dark. There was no request to the court to charge upon the subject of retraction, but the defendant excepted to the charge as given because the court failed to charge the jury that they should take into- consideration the whole conversation, and that, if one part qualified the other, they should consider to what extent it qualified, and whether the whole conversation — 277 — amounted to the slanderous words alleged. The defendant had seasonably claimed that the defendant’s answer to Untiedt’s question so- modified his statement to Clark and Untiedt, if made, that there was no charge of adultery on that occasion. The charge on this subject was: “It is not necessary that you should find that the defendant used the precise words alleged in the declaration; but the plaintiff must prove that the defendant used substantially the words as alleged. Neither is the plaintiff bound to prove the speaking of all the words charged in the declaration. If you believe from the evidence that the defendant spoke of and concerning the plaintiff in the presence and hearing of Clark, or of Clark and Untiedt, or of both of them, on one or both of the occasions in question, any of the slanderous words charged in the declaration, the fair import of which would be to charge the plaintiff with the crime of adultery with Dr. Ellis, then she is entitled to a verdict.” This was a correct statement of the law, and met the requirements of the case unless it was the duty of the court to have called the attention of the jury to- the defendant’s answer to< Untiedt, and instructed them that they should consider the defendant’s statement and answer together, and determine whether the answer was a retraction of the charge, or such a modification of it that, taken together, there was, on that occasion, no' charge of adultery. We think it was not the duty of the court to instruct further, for the fair import of the answer to Untiedt’s question was not a retraction. His charge was that he caught them in the very act, but whether by the sense of sight, hearing, or touch, he did not explain. When the witness suggested that he had said it was a very dark night, and asked, “Now Mr. Bacon, do- you say that you catched them in what we call sexual intercourse?” he said he didn’t, because it was too dark. There was no retraction of — 278 — the charge. The plain meaning of the answer was that while it was so1 dark that he could not actually see the exposed persons of the parties, he saw and heard enough to satisfy him that they' were engaged in the act of adultery and to justify him in saying that he caught them' in the act. Judgment reversed and cause remanded.