Hintz v. Graupner

Moran, P. J. This appeal is prosecuted to review a judgment rendered against appellant for slander of appellee. The alleged slander consisted of a statement laid in the declaration in various forms, charging in substance that appellee had been guilty of stealing money. The evidence clearly supports the verdict in finding that appellant was guilty of uttering the slanderous words, but it is contended that various errors were committed by the court during the progress of the trial, which constitute grounds for setting aside the verdict. One of the forms in which the slander was laid in the declaration, and shown by the testimony of witnesses to have been spoken, was as follows: “Mary Moldenhauer” (meaning the plaintiff) “ has confessed to Mrs. Yosberg that she stole the money.” The plaintiff was allowed to call Mrs. Yosberg and to prove by her that plaintiff had never made any such confession to her. It is urged that this was error, as no evidence had yet been introduced by defendant to show that said statement was true. Appellant had a plea of justification on file, alleging the truth of the alleged slanders. We can not perceive how it could be injurious to him to allow plaintiff to prove the falsity of said statement, before he attempted to prove its truth. If the statement was slanderous, without evidence that it was false, then the order in which the plaintiff introduced his proof on the issue made by the plea of justification, was, in fact, advantageous to appellant. If the evidence was not to be applied on the issue made by the plea, then it did not harm the appellant, for it only proved that which would be implied without proof. It is not like the case of Ætna Life Ins. Co. v. Paul, 23 Ill. App. 611, cited by appellant. It is urged that it was error to allow evidence to be given of a conversation held by appellant with the father of appellee some six months after this slander suit was commenced. The conversation related to the trouble between appellant and appellee, and whatever was said by appellant about appellee, or his feelings toward her down to the day of trial was competent, if it tended to show malice on his part. Though malice is implied from the utterance of false and slanderous words, yet the plaintiff is at liberty to prove express malice in aggravation of damages. Ho attempt was made to prove a difficulty between appellee’s father and appellant. It was what appellant said about such a difficulty in a conversation relating to his treatment of appellee, that was proved, and in such connection it was entirely competent. On the same grounds, all appellant’s acts showing a desire and an effort by appellant to procure appellee to be indicted for the alleged larceny, were competent, even though such effort was made after the commencement of the slander suit. It is contended the court erred in instructing the jury as to the damages. The instruction was as follows: “ On the question of damages you are instructed that actual damages need not be proved, but you will give such damages as under the evidence you think right and proper, the law permitting you to give exemplary damages by way of punishment.” It is said by counsel that exemplary damages by way of punishment are not authorized unless the jury find express malice. This is not the rule in slander. The malice that is implied from the speaking of actionable words is a sufficient basis for the award of punitive damages. This is directly determined in this State by the case of Schmisseur v. Kreilich, 92 Ill. 347, and so far as we are advised has been always so decided where the point has been made. Buckley v. Knapp, 48 Mo. 152; Clements v. Maloney, 55 Mo. 352, and cases there cited. Slander is not like the ordinary action for tort, such as trespass for injury to the person or property. In such cases, in order to recover more than actual damages, it must be shown that thetrespass was wantonly and wilfully committed. There are other alleged errors pointed out and relied on by counsel, but we do not deem it necessary to discuss them further than to say that we have considered them all, and do not regard them, or any of them, as being well taken. The damages are pretty large, but the jury is the tribunal provided by law to fix the damages in such cases, and unless the amount is so large as of itself to indicate passion on the part of the jury, an Appellate Court can not interfere. Judgment affirmed.