Swartzel v. Dey

By the Court, Safford, J. This was an action for slander brought by Annis Dey against John T. Swartzel, in the District Court of Wyandotte county. The words charged in the petition to have been spoken of the plaintiff by the defendant, were “ shut your mouth you damned whore.” The defendant admitted the speaking of the words, alleging that at the time of the speaking, the plaintiff kept a house of ill-fame, then and there resorted to for the purpose of public prostitution — as matter of justification. The case was first tried at the April term of said court, 1864, and a verdict rendered for the plaintiff for $2,500 damages. The defendant at the same time moved the court for a new trial on the ground of excessive damages, which motion was granted and the cause continued. At the April term of said court 1865, a second trial was had and a verdict rendered in favor of the plaintiff for the sum of $2,000 damages. [247] Thereupon the defendant moved the court for a new trial: 1ft. On the ground that the damages were excessive and must have been given under the influence of passion or prejudice, and 2d. Because the verdict is not sustained by sufficient evidence and is contrary to law. The court overruled the motion and gave judgment for the plaintiff in the said sum of $2,000, to which ruling and judgment the defendant excepted and brings the case to this court for review. Yarious rulings of the court upon questions arising during the progress of the trial, are assigned for error, as well as the ruling upon the motion for a new trial. The question as to whether or not the court erred in overruling the motion for a new trial will be first considered. The plaintiff introduced testimony going to show that her character for chastity was good ; one witness testifying that it was such and three others that they had never heard anything against it. The defendant offered testimony to show that the plaintiff kept a small hotel, and that lewd women were living there in 1859 and ’60, as inmates of plaintiff’s family; that the fact of such persons being there was known in the neighborhood and spoken of. The defendant himself testified that previous to the speaking of the words complained of he had heard the report, — as to one of the women, that she was a loose character, from some of the boarders at plaintiff’s house and from neighbors. There is no evidence showing that the plaintiff was acquainted with the character of the women spoken of. Aside from some testimony concerning the time and place of the speaking of the words by the defendant and the presence oí third persons, the foregoing is the substance of the evidence that was permitted to go to the jury. It is nowhere shown that any one believed the words spoken to be true of the plaintiff, but the record exhibits the fact [248] that she was married to one Hey during the pendency of the suit. Under such circumstances as they appear from the testimony, (and it may be remarked that -the record purports to give the whole of it,) the question is, are the damages excessive ? If so, the court should have sustained the motion for a new trial upon this ground. The right to grant new trials on account of excessive damages in actions of slander is denied by none of the authorities I have been able to examine. Says a distinguished judge in reference to this subject: “It would indeed be a reproach to the law if this power did not exist, and it is clearly recognized in many adjudications. There is probably no class of cases where a jury are more liable to improper excitement, and to be controlled by impulse rather than by sober and unimpassioned judgment than in slander, and if the power to grant new trials in this action is never to be exercised, it would not unfroquently be employed as an instrument of rank injustice and ruinous oppression.” But the authorities are uniform- on the point that the verdict should not be set aside unless the amount of damages is so extravagant as to show that the jury acted corruptly or under the influence of passion, partiality or prejudice. We appreciate the force and justice of this rule, and while wo adhere to it, its application to this case in our opinion, requires of us to reverse the judgment below, and direct a new trial to be granted. We are reluctant to interfere with the verdict of a jury in any case, and the more so on this occasion from the fact that this was the second trial had in the case. In such an instance the rule referred to should be adhered to with great tenacity. But when it is considered that the plaintiff was married during the pendency of the suit, thus rebutting the idea that her character had been materially injured — that there was some evidence through it may have been slight to show [249] that the plaintiff had and kept in her family at least two lewd women, and that this was known among the neighbors and to defendant before the speaking of the words, we think the verdict for $2,000 is evidence that it was the result of some unaccountable prejudice, and that we ought not to sustain it. It may have been a case for exemplary damages but we cannot see anything in the evidence which if fairly and impartially weighed by the candid and deliberate judgment of a jury under all the circumstances, would justify them in rendering a verdict for so largo a sum. The views thus expressed, practically dispose of this case as far as this court is concerned, and yet it may not be amiss to notice some of the other grounds assigned for errar. It is contended that the court erred in allowing the plaintiff’ to open and close the case both in the offering of testimony and the argument to the jury. "We do not think that the action of the court in this respect is a matter reviewable on error except it may be in extraordinary cases. It will be seen by an examination of section 277 of the Code that the order of a trial may be changed by the court for special reasons, thus making it a matter of discretion. The counsel for plaintiff' in error also contends that the court erred in charging the jury, that there was no justification for the defendant below as the pleadings stood. We think the court was right. The charge was not, as we understand it, that a party could not justify himself in an action for slanderous words by proving the truth thereof, but that under the pleadings in this case the truth of the matter pleaded would be no justification for the.defendant but would only go in mitigation of damages. The form of the defendant’s plea was that of justification but the matter of it was. not. Hence there was no error in this. It does not appear that the first question raised in the [250] brief for plaintiff in error' was passed upon or even mentioned on the trial below. We do not therefore feel called upon to consider it. It may be regarded as outside the case. The objections in regard to the admission of certain depositions will not be likely to arise in this case again, and may be passed over. The judgment of the court below will be reversed and the cause remanded, with instructions to sustain the motion for a new trial. All the justices concurring.