Ballard v. Krug

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover damages alleged to have been, incurred by reason of slander. The defendant answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from the judgment entered thereon the defendant has appealed and has brought up typewritten transcripts.

In her first point the defendant devotes a large amount of space to the motive which prompted the plaintiff to commence this action. If in filing her complaint the plaintiff acted within her legal rights her action in that respect is not converted by a bad motive into an unlawful act. Furthermore, in so far as the plaintiff’s motives threw any light on the truth of the charges made by her, in support of the judgment, we must assume that the jury gave due weight

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to everything the defendant presented regarding the motive of the plaintiff. Under this heading the defendant calls to our attention many items of evidence which she claims to be inconsistent or improbable. Of course all of these matters were for the consideration of the jury and not of a court of review.

The jury returned a verdict in the sum of $30,000. The defendant claims the verdict was excessive. The point has no merit whatsoever in the instant case. The specifications of the slanderous words were such that if the jury believed the alleged words had been spoken and that they were not true, it is then quite clear that the slander was so atrocious that there is no room for claiming that the verdict was excessive.

It is asserted that the court erred in refusing to give an instruction worded as follows: “The Court instructs the jury that the failure to call an available witness possessing peculiar knowledge concerning facts essential to the party’s cause, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness be naturally favorable to the party’s contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference, sometimes denominated a ‘strong .presumption of law’, that the testimony of such uninterrogated witness would not sustain the contentions of such party in suit.” A most cursory reading of the proposed instruction shows that it is not sound law. Nor was it applicable to any evidence in the case. One Casey Jones was residing at the time of the trial at a place apparently within the jurisdiction of the trial court. He was not called as a witness by the plaintiff. The record discloses no reason why the plaintiff should have called him. Furthermore it discloses no reason why the defendant did not call him if the defendant so desired.