Mitchell v. Milholland

Mr. Justice Craig delivered the opinion of the Court: This was an action brought by appellee, against appellant, for slander. The trial in the circuit court resulted in a verdict and -judgment for the plaintiff in the action, which, on appeal, was affirmed in the Appellate Court. The grounds for reversing the judgment relied upon here, are the admission of improper evidence, the giving of improper instructions for plaintiff, and refusing certain instructions asked by the defendant. It appears from the record that there is a church in the west part of McLean county, of the Cumberland Presbyterian denomination, known as the West Union Church. Appellee was pastor, and appellant was one of the elders. In this church there were in all six elders. The session of the church, under the rules of the denomination, is composed of the elders and the pastor, the latter being, ex officio, moderator. In 1875 it appears that one Hayberger, an elder, was elected clerk of ■ the session, and no change was made in the office until 1879, when, as appears, some trouble arose between the pastor and appellant in regard to church matters, and Hayberger being in sympathy with appellant, at a meeting of the session, on September 5, 1879, he was superseded in the office of clerk by one Williams, who was then formally elected to that office. The church record was subsequently surrendered to Williams. At a meeting of the presbytery at Danvers, within which this church is located, in March, 1880, the following question 'was submitted to that body for decision : “Can a church session elect a clerk, when there is no vacancy, without notifying the acting clerk?” The decision of the question was deferred until the August meeting, at Lincoln, when the presbytery decided in the negative. Subsequently the session of West Union presented the question to the presbytery in form, and requested that body to decide who was the legal clerk of the session. In March, 1881, in conformity to the former decision, it was held that Hayberger was the legal clerk of the session. An appeal was taken from this decision to the synod of Sangamon, which body had the right and authority to review the decision of the presbytery, where the former decision, that Hayberger was clerk, was reversed, and Williams was declared to be the clerk of the session. In the meantime, however, after the decision of the presbytery on the question propounded, and before the decision of the synod, on January 4,1881, Hayberger brought an action of replevin against Williams, before a justice of the peace, to recover the possession of the church record. On the trial of this cause appellee was a witness, where the question involved was who was clerk of the session, and entitled to the custody of the record, and the alleged slanders grew out of the testimony given by appellee on that trial, appellant, on various occasions, making the charge, in substance, that appellee had sworn falsely on that trial. On the trial of the cause appellant put in evidence the proceedings of the presbytery held at Stanford, in March, 1881, wherein it was decided that Hayberger was the lawful clerk. Appellee also read in evidence the proceedings of the synod reversing the proceedings of the presbytery, on appeal to that body,—and the decision allowing this evidence is claimed to be erroneous. Whether any of this evidence was strictly competent, is a question which it is not necessary here to decide; but it is apparent if the proceedings of the presbytery were legitimate evidence, the proceedings of the synod were also competent for the jury. Under the regulations of the church the synod had the power to reverse decisions of the presbytery, and when appellant interposed any right under the action of the latter body, it would have been manifest injustice to have denied appellee the right to prove that those proceedings had been annulled and set aside by a higher tribunal. The testimony which was charged to have been false was given before the decision had been rendered either in the presbytery or the synod, and if either of the decisions is to govern, it is very plain that the one made on appeal in the higher tribunal, as the one of last resort, must control. The reversed decision put in evidence by appellant could settle nothing, and the moment he put it in evidence appellee had the undoubted right to show that the decision had been reversed and annulled by a tribunal higher in authority. We now come to the instructions claimed to be erroneous. Instruction No. 3 is the first one. In substance it directed the jury that the words “he perjured himself, ” “you swore to a lie, ” when spoken concerning a person in the hearing of other persons, are what the law terms “actionable words,” and from the speaking of such words the law infers malice, and presumes that the person concerning whom the words are spoken is damaged. Appellant had interposed a plea of justification to each count of the declaration, and he contends that the instruction is erroneous because it ignores the very material fact as to the truth of the words spoken. Of course the truth of the words spoken would defeat a recovery, but we do not understand that it was necessary to add the qualification as to the truth of the words spoken to every instruction given for the plaintiff. It was enough if the jury was distinctly directed, in any of the instructions, that if they found the charge or charges so uttered were true, no recovery could be had. In the third, and perhaps other instructions given for the defendant, the jury were, in clear and express terms, directed, that if they found, from the evidence, that the words spoken were true, no recovery could be had. There was no room for the jury to be misled by the instructions. The plaintiff’s third instruction informed them correctly as to the propositions of law upon his theory of the case, and then the defendant’s instruction came in and gave directions upon the theory of the defendant. We do not think the plaintiff was bound, in his instructions, to anticipate and exclude defences. As was said in Logg v. The People, 92 Ill. 598 : “The plaintiff is only obliged to present the law correctly in his instructions applicable to his theory of the case, and is not bound, in every instruction, to anticipate and exclude every possible defence.” What has been said in regard to the third, meets the objection urged against instructions Nos. 4 and 5. It is objected to the ninth instruction, that in giving it the court determined a question of ecclesiastical law contrary to the ruling in Chase v. Cheney, 58 Ill. 509. Whether it was an “unwarranted assumption of the civil court,” as claimed by counsel, for the circuit court to instruct the jury that the session had the right to elect a new clerk without declaring the office vacant or giving notice to the incumbent of the office, is not a matter which could in the least affect the rights of the parties.- The decision of the presbytery, and the decision of the synod reversing that decision, and holding that the election of the new clerk was proper, were in evidence before the jury, and the instruction left the matter where the ecclesiastical decision, which appellant had brought before the jury, placed it. Exception was taken to the eighth, twelfth, thirteenth and fifteenth instructions, but we perceive no substantial objection to either of them. It is also contended that appellant’s first-refused instruction is correct, and the court erred in refusing it. This instruction is based upon the supposed fact that the presby- • tery at Lincoln had decided who was the legal clerk of the session; and as the record fails to show that such a decision had been made, there was no evidence upon which the instruction could be predicated, and for this reason, if for no other, the instruction was properly refused. The second refused instruction directed the jury, that if the slanderous words set up in the amended declaration were spoken more than one year before the amended declaration was filed, the action for such words was barred by the Statute of Limitations. Had a new cause of action, not embraced in the original declaration, been brought into the suit by the amended declaration, the instruction might have been correct. But such was not the case. The amendment was a mere restatement of the cause of action by way of amendment, and, as was held in Dickson v. Chicago, Burlington and Quincy R. R. Co. 81 Ill. 215, this may be done without its being obnoxious to the objection of introducing new causes of action. The amendment was but a different form of. the same charge of slander alleged in the original declaration. The third refused instruction in substance directed the jury, that “to constitute slander per sc, the defendant must have uttered the slanderous words charged in the declaration both falsely and maliciously. ” The law does not require malice in fact to be proven,—malice is implied from the speaking of the words. Gilmer v. Eubanks, 13 Ill. 271. This disposes of the objections relied upon to reverse the judgment, and in conclusion we would add, that after a careful examination of the entire record we perceive no ground whatever for disturbing the judgment. The judgment will be affirmed. Judgment affirmed.