Michaelson v. Turk

Williams, PRESIDENT: By this writ of error defendant, Samuel Turk, seeks reversal of a judgment recovered against him by T. Michaelson in an action for slander. The declaration charges defendant with having called plaintiff, in a public place in one of the streets of Bluefield, in the — 32 — presence of other persons, a “dirty, ornery, low-down, son-of-a-bitch and bastard.” The action is brought under the statute, Sec. 2, Ch.-103, Code, for the use of insulting words. The plea is not guilty. It was proven by the testimony of plaintiff and one or two other witnesses that at the place and on the occasion alleged defendant was angry toward plaintiff and did call him by the vile epithet, almost in the exact words alleged. Defendant admitted that he spoke the words, but testified that he was not angry at the time, did not then mean to insult or injure plaintiff; that they were members of a club and frequently gambled at the club room and were in the habit of using those terms toward each other during their games and that they were used commonly between them and among other members of the club and were always spoken in a friendly spirit and without any purpose to offend the party of whom they were spoken, and that they were never considered by them as insults and that when he spoke them on the occasion charged in the declaration, he did so in the same spirit of friendliness and good humor and without any intention to insult plaintiff or wound his feelings. ' Defendant offered to prove by Harry Matz, another member of the club, that when plaintiff and defendant were engaged in games of cards, they often applied the alleged epithet to each other in a friendly way and that neither of them ever took offense at it. The court excluded Matz’s testimony and directed the jury not to consider it, and this is assigned as error. The jury were entitled to know whether or not the epithet had been commonly applied by the parties to each other and how they regarded it, whether as an insult or not, in order-that they might correctly determine the purpose and effect of its use on the occasion in question. They were entitled to know all the facts and circumstances leading up to the use of the words. Notwithstanding the words were spoken and the jury may have thought they were such as tended to violence and a breach of the peace, the evidence was important on the question of malice, which is the very gist of the action. If the jury believed the words were meant simply as a jest, and were not spoken with malicious intent, they could find for the defendant, notwithstanding the words were — 33 — such as in their opinion are commonly construed as insults and tend to violence and a breach of the peace. But it is argued in brief that plaintiff was not prejudiced by the exclusion of that evidence, for the reason that defendant’s own testimony on that point went to the jury and was not contradicted by any rebuttal testimony. It does not follow that the admission of his own testimony, uncontradicted though it be on that point, shows no prejudice by the rejection of Matz’s testimony on the same point. Por although not contradicted on that point, defendant was contradicted by plaintiff and other witnesses on other material points, and as to them, the jury evidently did not believe hiih, and, having found his testimony false in respect of some material matters, they had the right to conclude that he was testifying falsely in regard to all material matters, and to, disregard his testimony. They were the sole judges of his credibility and of the value of his testimony. They may have disregarded his testimony concerning the fact he proposed to prove by Matz, and, the fact being material, it must be presumed that the exclusion of Matz’s testimony was prejudicial. The court can not see clearly that it did not prejudice him. Defendant testified that plaintiff won money from him by the use of marked cards, and the court struck out this testimony ; and this is assigned as error. But this error was subsequently cured by allowing his testimony concerning this fact, brought out on cross-examination, to go to the jury, no objection then being made to it. The jury were entitled to this evidence in considering whether or not there was any provocation for speaking the words. If defendant was provoked by plaintiff to make use of the language, the jury could regard it in' mitigation of the alleged wrong, and if, in their opinion, the provocation was sufficient, they could find for the defendant. The statute making the insulting words actionable was enacted to supply a need which the legislature of Virginia felt to. exist in the common law, and was designed to afford redress by a civil action for damages to a person maliciously insulted by another who has used language concerning him, whether spoken or written, which is commonly construed as an insult and tends to produce violence of temper and cause — 34 — a breach of the peace, but which, at the common law, did not amount to slander or libel. Men were often provoked by insulting words to commit acts of violence which often resulted in homicide. Duelling had become too common a practice in the state, and the statute was at least partially designed to suppress the practice by supplying a civil remedy to the party thus insulted and injured. But it was clearly the legislative purpose to allow the jury, in every such ease, to be the solé judges of whether or, not damages are recoverable. The effect to be given to words, ordinarily insulting, is a question for the jury. They have the right to give to the same words a different effect, depending on the nature of the circumstances and the occasion of their use, and the mental attitude of the parties toward each other. Hence it was important to show all the facts and circumstances relating to the use of the alleged insulting words. If the jury should conclude that there was not sufficient provocation to justify such a vile epithet, they could regard it as an aggravating circumstance. If defendant’s provocation was great plaintiff would not be entitled to as much damage as if the provocation were only slight or entirely wanting. Exceptions were taken to the refusal of the court to permit certain questions propounded to the witnesses'to be answered. But the record does not show how the witnesses would have answered the questions, and, therefore, this court can not presume defendant was prejudiced. Washington Luna Park Co. v. Goodrich, 110 Va. 692; Lord & McCracken v. Henderson, 65 W. Va. 321; Sayre v. Woodyard, 66 W. Va. 228; and Walker v. Strosnider, 67 W. Va. 39. The giving of three instructions for plaintiff is also assigned as error. No. 1 is as follows: “The jury are instructed that if the words referred to in the evidence, when used, you believe they are, from their usual construction and common acceptation, construed as insults and tend to violence and breach of the peace, then they are actionable in themselves and the law presumes that a party uttering them intended maliciously to injure the person concerning whom they are spoken of, unless the con — 35 — trary appears from the circumstances occasioned by the manner of tbe speaking of the words.” The objections urged are: (1) it assumes that the words complained of were in fact spoken, whereas there is a conflict in the evidence as to whether or not they were spoken; , (2) it tells-the jury that when insulting words are uttered the law presumes intention to maliciously injure the person of whom they are spoken; (3) it limits the rebuttal of the presumption to the manner of speaking the words; and (4) because it is based upon the dual theory of statutory insult and common law defamation of character, whereas there is but one count in the declaration. Although not artistically drawn, we scarcely think the instruction is faulty in any particular named. Properly interpreted, we think, it tells the jury, that if they believe the words referred to in the evidence, from their usual construction and common aceceptation, are construed as insults and tend to violence and a breach of the peace, then they are actionable words, and any person using them is presumed to have intended maliciously to injure the person concerning whom they are spoken, unless the contrary appears from the manner of speaking them and the circumstances which occasioned their use. The qualifying clause, beginning with the word unless, is somewhat awkwardly expressed, still we hardly think the jury could have failed to understand that they were instructed to consider both the manner, (i. e. the temper), in which the words were spoken and the circumstances relating to their use; that is, whether the words were spoken in anger and with a purpose to insult, and also whether there was any provocation for using such offensive language. As to the first- objection, even if it could be said the instruction assumes that the words were actually spoken, it would not be prejudicial, because defendant admits that he, at the time and place averred, did say “dirty son-of-a-bitches, robbed me of my money,” but says he was not angry. Later on he explains why he used the words, and says he did so because “they”, (meaning plaintiff and his brother,) “had gotten his money,” that “it was nothing but a hold-up proposition,” (meaning they had won money from him at a game of cards by means of a marked deck). The — 36 — second point of criticism is not well taken. Malice may be presumed, by the jury of course, from the use of words which the statute makes actionable. In other words, proof that actionable words were actually spoken makes a prima facie case against the party using them. This is a presumption which may be rebutted by proof that no malice was intended.- True it is a presumption of fact, but nevertheless a fact which the law allows the jury to infer from the use of actionable words. We hardly think the qualifying clause of the instruction limits the jury to a consideration only of the manner in which the words were spoken. It authorized them to consider the extenuating circumstances, if they believed any had been shown. Neither do we think the instruction liable to the fourth objection made to it. It relates entirely to statutory insult and can not be said to include common law defamation of character. However, on a re-trial of the case, it ought to be redrawn, and so worded as to set forth more clearly the purpose which the draughtsman evidently had in mind. Instructions Nos. 2 and 4 are as follows: “No. 2. The court instructs the jury that damages recovered in actions of this character, are of two classes. First, actual or compensatory damages, which embrace loss of reputation, shame, mortification and injury to the feelings. Second, exemplary or punitive damages, which are damages that may be awarded by the jury where they believe that the slanderous or insulting words, if they believe such slanderous and insulting words were used and spoken by the defendant of and concerning the plaintiff are falsely, maliciously, willfully and deliberately spoken of and concerning the plaintiff by the defendant. ’ ’ This instruction was designed to tell the jury the character of damages recoverable in this ldnd of action, and is without fault. “No. 4. The court instructs the jury that if they believe from the evidence in this case that the defendant uttered and published of and concerning the plaintiff, the words referred to in the evidence, and that said words so uttered and published of and concerning the plaintiff by the defendant were, from their usual construction and common acceptation con — 37 — strued as insults and tend to violence and breach of tbe peace, they shall find for the plaintiff, and if they believe further, that such words were used and spoken by the defendant of and concerning the plaintiff, with a willful, deliberate and malicious intent to injure and insult the said plaintiff, then you shall find for the plaintiff such sum as will compensate him for loss of reputation, if any, shame, mortification and injury to his feelings, if any, and in addition to this, may find punitive damages as a punishment to the defendant. ’ ’ This instruction is erroneous for the reason that it is imperative upon the jury to find for the plaintiff, if they find the actionable words were actually spoken, and denies them the discretion which it was the evident purpose of the statute to vest in them. The finding of the jury in actions for statutory insult can not be controlled by the court. But that part of the instruction relating to punitive damages is not erroneous. It leaves it to the discretion of the jury whether or not they will find such damages. In all actions of tort, where the wrong is maliciously, wantonly and wilfully committed, the jury have the discretion to assess punitive, exemplary or vindictive damages, — these terms being synonymous. They have the right to do so in this action. Mayer v. Frohe, 40 W. Va. 246; and Turk v. Railway Co., 75 W. Va. 623, 84 S. E. 569. The judgment is reversed, the verdict set. aside and the case remanded for a new trial. Reversed, verdict set aside. Remanded for new trial.