Walker v. Wickens

The opinion of the court was delivered by Johnston, J.: This was an action for malicious slander. W. M. Walker, a merchant in Sabetha, stated to several persons that Margaret R. Wickens had stolen shoes from his place of business. When she brought an action to recover damages for the alleged slander, he answered that the charge which he had made was true, and that she did commit larceny in taking the shoes. At the trial, the jury found that the charge of larceny made by Walker was untrue; that he was prompted by ill-will and bad intent toward Mrs. Wickens in uttering the slander, and had no grounds for believing the charge to be true; and that, at the time he charged her with stealing shoes, he did not actually believe she had done so. In the general verdict the damages were assessed at $250. Some objections are made by Walker to the admission of testimony respecting the speaking of the slanderous words, but as he admitted the uttering of the words, and reiterated them in his answer, there is nothing substantial in these objections. He undertook to justify by showing that he not only gave publicity to the charge, but that she was actually guilty of the crime imputed to her. He signally failed in his defense, and although it is urged that the testimony does not warrant the action of the jury, we think it is sufficient to sustain both the special findings and verdict. Some complaint is made as to the instructions, which, although voluminous, are in our opinion substantially correct. The jury were told that, if the defamatory words spoken were untrue, damage might be presumed without proof of actual damage; that the plaintiff would be entitled to at least nominal damages, and in addition thereto to such general damages as the evidence might show she had sustained. They were also advised that exemplary damages might be allowed, not exceeding the amount claimed by the plaintiff in her petition. [48] A criticism is made because the court did not make malice essential to the awarding of exemplary or punitive damages. The instruction with respect to exemplary damages is subject to criticism in this respect; but the jury have found that the imputation of crime was false; and further, that Walker was actuated by special ill-will and bad intent toward Mrs. Wick-ens in making the charge; and hence the omission becomes unimportant. The defamatory words used by Walker are actionable of themselves, and having asserted their truth in his answer, and reiterated the same upon the witness-stand at the trial, and being found to be false, the law implies malice. In such cases damages are not limited to the amount of actual pecuniary loss which the plaintiff is able to prove; but as a general rule, when, the falsity of such a charge is proved, it is sufficient to]warrant the jury in giving exemplary damages. It was the province of the jury to determine whether the slanderous charge and the circumstances surrounding it were of such a character as required the assessing of damages by way of punishment. There was testimony offered which, although contradicted, tended to show actual malice; and this, together with what was fairly implied from the falsity of the slanderous charge, is sufficient to sustain the special finding returned by the jury that Walker was actuated by malice. The jury were told that if the circumstances which came to Walker’s attention, connected with the taking of the shoes by Mrs. Wickens from his place of business, were such as to induce the belief which he expressed, and if in good faith he spoke the defamatory words believing them to be true, such fact might be considered by the jury in mitigation of any damages that the plaintiff had sustained. The giving of this instruction answers some of the objections made to the refusal of the instructions requested. In view of the fact that the slanderous charge was found to be false, and that the character and standing of Mrs. Wickens were well sustained by all or nearly all of the witnesses, the amount of damages awarded was moderate, and we think none of the exceptions urged by the plaintiff in error can be sustained. Miles v. Harrington, [49] 8 Kas. 425; Hess v. Sparks, 44 id. 465, 471; Bergman v. Jones, 64 N. Y. 51; Hubbard v. Rutledge, 52 Miss. 581; Gilman v. Lowell, 24 Am. Dec. 96; Flagg v. Roberts, 67 Ill. 485; Newell, Defam. 329, 842; 13 Am. & Eng. Encyc. of Law, 432. The ease appears to have been fairly submitted to the jury, and, there being testimony to sustain its findings and verdict, we find no sufficient reason for a reversal. The judgment of the district court will be affirmed. All the Justices concurring.