Wright v. Baldwin

NOURSE, J.

This is an appeal by defendant from a judgment, following a verdict, entered against him in favor of plaintiff in a joint action for malicious prosecution and slander. The complaint contained four causes of action, three for malicious prosecution growing out of the arrest and trial of the plaintiff upon a charge of embezzlement and the fourth for slander growing'out of statements alleged to have been made by the defendant in the courtroom of a justice of the peace who was conducting the preliminary hearing of the plaintiff upon the embezzlement complaint. Plaintiff was nonsuited on the second and third causes. The jury awarded him damages in the sum of six thousand dollars, with nothing in the verdict to indicate what portion was allowed on each cause of action or what portion was allowed for either compensatory or punitive damages.

Various grounds for reversal have been urged by appellant, the most patent objections going to the error of the trial court in instructing the jury.

[1]

Upon the cause of action for slander the court, after instructing the .jury that the words charged as having been used were slanderous

per se

and that the first duty of the jury was to determine whether those words were used by the defendant of and concerning the plaintiff, gave the following instruction as to the damages which might be awarded under this cause of action: “If you believe from the greater weight of the evidence that they were so used, your verdict will be for the plaintiff, and you will assess such a reasonable sum as his damages as in your sound discretion you believe from the facts and circumstances in evidence will be just and right, and . . . will compensate the plaintiff for the injury to his feelings, etc. . . . Von may also allow such a temperate amount by way of punitive or exemplary damages as will serve to prevent or deter said defendant from committing a similar wrong hereafter. If yon believe from the evidence that defendant did not utter the words charged in the complaint of and concerning plaintiff, you will, of course, award no damages therefor.”

[149]

The foregoing were the only instructions given by the court upon the cause of action for slander. All the other instructions related solely to the first cause of action for malicious prosecution. That these instructions failed to present the issues fairly to the jury cannot be doubted. The effect was that, if the jury found that the defendant spoke the objectionable words of and concerning the plaintiff, they could award the plaintiff both compensatory and punitive damages without regard to any consideration of malice or motive, but that they could decline to award damages for the alleged slander only in the event, they should find that defendant did not utter the words charged of and concerning plaintiff.