White v. White

¶1after making the foregoing statement, delivered the following opinion of the court:

¶2The questions presented for our decision by the assignments of error will be disposed of in their order as stated below.

¶31. Is or is not the plea of justification, interposed by the defendant, a good plea?

¶4This question must be answered in the negative.

¶5It is urged in behalf of the plaintiff that the plea is bad in two particulars: first, because it admitted a part only of the defamatory matter charged in the second count of the declaration, and so was not as broad as the charges; and., second, it does not justify the admitted words with their natural and ordinary meaning according to the usual construction and common acceptation of such language, nor deny that the plaintiff’s declaration puts the true construction on such words, and hence also is not as broad as the charge of such words in the declaration.

¶6With respect to the first-mentioned particular, this should be said:

¶7. [1] It is true that a plea of justification cannot operate “as a complete defense” to the action if it pleads the truth of a part only of the defamatory charge. 25 Cyc., sec. 3, p. 460; Note in 31 L. R. A. (N. S.), p. 138; Gault v. Babbitt, 1 Ill. App. 130; Woodruff v. Richardson, 20 Conn. 238; *628Sanford v. Gaddis, 13 Ill. 329; Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856; Fero v. Ruscoe, 4 N. Y. 162. But—

¶8“Where the defamatory matter is divisible and contains several distinct libelous or slanderous charges, defendant may justify one or more of the separate charges.” 25 Cyc. (K), p. 464; Townshend on Slander and Libel (4th ed.), pp. 311, 319; Note in 31 L. R. A. (N. S.), p. 137; Odgers on Libel and Slender (1st Am. ed.), p. 176; and other authorities above cited.

¶9[2] As said in Odgers on Libel and Slander, at p. 176: “So, he may justify as to one part and demur or plead privilege as to the rest, or deny that he ever spoke or published the rest of the words. But in all these cases the part selected must be severable from the rest so as to be intelligible by itself and must also convey a distinct and separate imputation against the plaintiff.”

¶10The imputation referred to in the quotation just made need not be of a different offense from that or those imputed by the rest of the words charged. The defendant may justify as to any part of the defamatory matter which is of itself actionable.

¶11[3] Therefore, the plea in this case would not be bad merely because it is not as broad as the whole of the charges in the second count of the declaration. It does not purport to be that broad. It does not interpose a complete defense to the action, but only a partial defense, to-wit, to the action in so far as based on that part of the words charged which are admitted by the plea to have been spoken. This would be permissible if such words were of themselves actionable. It is plain, however, from a reading of them that these words do not of themselves, without the innuendo following them, which is not covered by the plea, convey any meaning of insult or tend to violence and *629breach of the peace, and hence they were not of themselves actionable. It is only when they are read in connection with the residue of the defamatory words charged in that count of the declaration that their meaning of insult and their tendency to violence and breach of the peace become apparent. Therefore, the words covered by the special plea, in the sense in which they were admitted by the plea' to have been spoken, were not severable from the rest of the words charged in the second count, and hence, the plea was bad.

¶12[4] We are also of opinion that the plea is bad in the second particular urged against it in behalf of the plaintiff, above mentioned, namely, in that it does not either deny that the plaintiff’s declaration puts the true construction on the admitted words or justify them as having been used only with their natural and ordinary meaning according to the usual construction and common acceptation of such language.

¶13In Odgers on Libel and Slander, at p. 176, this is said: “Again, where the words are laid with an innuendo in the statement of claim, the defendant may justify the words, either with or without the meaning alleged in such innuendo ; or he may do both — that is, he may deny that the plaintiff puts the true construction on his words, and assert that, if taken in their natural and ordinary meaning, his words will be found to be true; or he may boldly allege that the words are true even in the worst signification that can be put upon them. But it seems that a defendant may not put a meaning of his own on the words, and say that in that sense they are true; for if he deny that the meaning assigned to his words in the statement of claim is the correct one, he must be content to leave it to the jury at the trial to determine what meaning the words naturally bear.”

¶14*630[5] The truth which is admitted as a defense, in such an action as this, is the truth of the alleged words in substance and in fact, in the sense in which they were used and intended to be understood, or were reasonably understood in accordance ■ with the usual construction and common acceptation of the meaning of the words as used, in the light .of all the surrounding circumstances.

¶15We are, therefore, of opinion that the trial court should not have admitted the plea of justification to be filed over the aforesaid objections of the plaintiff.

¶16[6] As the only other plea of the defendant was the plea of the general issue, no evidence of the truth of any of the defamatory matter charged in the declaration was properly admissible in evidence; and we must consider the record as if -there was therein no issue and no evidence upon the question • of the truth of the- defamatory words charged •in the declaration.

¶17[7, 8] It is urged before us in behalf of the defendant that, notwithstanding the filing of the defendant’s plea of justification, as the verdict was in favor of the plaintiff, and the latter is content with that verdict as rendered, as is shown by the plaintiff’s seeking, on appeal, to maintain such verdict, the defendant is entitled to the benefit of the rule established by the following authorities (namely, Ruffner v. Hill, 31 W. Va. 428, 7 S. E. 13; 2 Barton’s Law Pr. [2nd ed.], pp. 724-5; Chapman v. Va. Real Estate Co., 96 Va. 177, 31 S. E. 74; Sutherland v. Wampler, 119 Va. 800, 89 S. E. 875), which rule bars the plaintiff’s right to have the appellate court consider whether there was error in the action of the trial court in admitting such plea to be filed. These authorities establish the general and correct rule, that upon a, writ of error to an order of a trial court setting aside the verdict of a jury and awarding a new trial, the plaintiff in error cannot, for the purpose of hav*631ing such order reversed, complain in the appellate court that the trial court ádmittéd illegal evidence, or gave the jury improper instructions, or erred in the reception of a special plea of the defendant on which the jury gave no recovery over against the plaintiff. But, as appears from such authorities, this general rule is applicable only where it is clear that the plaintiff in error has not been prejudiced by the rulings of the court with respect to these matters. Where, as in the case before us, it appears from the opinion of the trial court, as will be hereinafter mentioned, that he set aside the verdict in question solely as the result of his conclusions from what he considered was the evidence in the .case on the question of the truth or falsehood of certain of the defamatory words charged in the declaration, when, as we must regard the case as aforesaid, there was no issue and no evidence whatsoever on this subject which could have been properly considered by the trial court, it is at once apparent that the general rule aforesaid, invoked by the defendant, is inapplicable.

¶18We will next consider the question arising on the cross-assignment of error of the defendant to the action of the trial court with respect to instructions, namely:

¶19[9] 2. Was there error in the action of the trial court in giving the following instruction to the jury on the first trial of the case, to-wit:

¶20“Instruction C-l. — “The court instructs the jury that if they believe from the evidence that the language and words justified by the defendant’s special plea of justification, and such inferences and insinuations as may be drawn therefrom according to the usual construction and common acceptation of such language, were true, then they must find for the defendant to the extent of such special plea.” (Italics supplied.)

¶21The defendant asked for this instruction without the words which we have italicized. The trial court modified *632the instruction as asked by inserting the italicized words, and gave it as so modified. It is of this that the defendant complains. It is contended that such language was misleading and imposed upon the defendant the burden of proving “the truth of any inference, without limit or restriction, whether, proper or improper, fair or unfair, reasonable or unreasonable, that may be drawn from the language used according to its usual construction and common acceptation.” In support of this position the case of Williams Printing Company v. Saunders, 113 Va. 156, 73 S. E. 472, Ann. Cas. 1913E, 693, is cited, and the following part of instruction 10, approved by the court in that case is referred to, namely: “But as to this article, as to buying votes in Manchester, the jury are instructed that the language used means, in its fair interpretation, according to the usual construction and acceptation of the language, that …,” etc. (stating the construction given by the court to the language there involved according to the usual construction and common acceptation of it).

¶22The instruction in question in the case before us was not, however, the only instruction given on the subject. Instruction (1), given by the court at the request of the plaintiff, was as follows:

¶23“(1) The court instructs the jury that in determining whether or not the language complained of in the declaration is insulting and tending to violence and breach of the peace, the words and sentences must be construed in the plain and popular sense in which the rest of the world would naturally understand them; that is, they are to be construed according to their usual construction and common acceptation. The charge or insult need not be in express terms, it may be by insinuation.”

¶24In- view of the fact that this instruction was also given to the jury, we are of opinion that there is no merit in *633the contention of the defendant with respect to instruction C-l, involved in the question under consideration.

¶25We come now to the question for our consideration presented by the plaintiff’s chief assignment of error, which is as follows:

¶268. Did the trial court err in setting aside the verdict of the jury, on the first trial of the case, on the grounds that the verdict is contrary to the law and the evidence, and is excessive? '

¶27This question must be answered in the affirmative.

¶28[10] There was no material variance between the allegations of the declaration and the proof introduced in evidence in behalf of the plaintiff as to the speaking and publishing of the defamatory words, in the sense in which they were alleged to have been used and intended to be understood, both as charged in the second and sixth counts of the declaration, on which the case was tried. There was ample evidence before the jury to support their verdict in so far as it was based on the finding that all of such words were spoken and published by the defendant as alleged. As alleged in the declaration and as shown by the proof, there was an interval of some ten months between the publishing of the words alleged in the second count of the declaration and the publication of those alleged in the sixth count, which in substance repeated the charge of the same offense as having been committed by the plaintiff. There is in evidence also a letter written by the defendant and his wife to the husband of the plaintiff about eleven months after the publishing of the words covered by the second count of the declaration and about one month after the publishing of the words covered by the sixth count of the declaration, which in substance reiterated the charge that the plaintiff had been guilty of adultery. There is also in evidence the testimony of a witness for the plaintiff to the effect that after this action was instituted and before the *634trial, the defendant repeated to him, in substance, the sanie charge, to-wit, that the plaintiff had been-guilty of adultery. The defendant, it is true, in-his testimony denies that he used on this occasion many of the words in question, and claimed that he did not use the words he admits having then used with the meaning alleged by the plaintiff. This, indeed, was the claim of the defendant in his testimony with rekpect to the words-used by him according to the testimony for the plaintiff, on all of the occasions of publication above mentioned-, and with respect to the contents of the letter aforesaid;' but that was a question- for the jury in the light of certain admissions made by- the defendant himself in his testimony and of all the other- evidence in the case; and there was ample evidence to sustain' the verdict of the jury based on a finding contrary to such claim of the defendant. Further, on the first trial of the case, the defendant in testifying with respect to what\he saw- and heard on the occasion in March,- 1918, referred to in the words alleged in the second count of the declaration, and in connection with his testimony that, “It didn’t look good to me right at that time,” added the following statement before the jury, namely: “She” (meaning the plaintiff) “had been accused of two parties and they are in this house” (meaning the courthouse) “today, and that would lead it right into my mind if nothing was done wrong right there —what I had seen.”

¶29There was, therefore; ample evidence before the jury on subjects mentioned in the next preceding'paragraph to support the verdict in question to the extent of its full amount. It appears, indeed, from the opinion of the court below in the record, that the learned trial judge entertained that opinion on those subjects. As appears from his opinion, he did not set aside the verdict for any lack of evidence to support it in those particulars.

¶30*635In the opinion of the trial judge, this is said: “The court concedes that if from the evidence the jury were justified in basing a verdict upon the theory that the words spoken by the defendant, and which he admits in his plea that he spoke, were utterly and absolutely false, ‘a frame-up’ on the part of the defendant and his wife ‘to blacken the character’ of the plaintiff, then the court would not set aside the verdict on the ground that the damages were excessive; and the court does not believe that the jury would have given' such damages, except upon that theory. But can it be said they were justified in basing a verdict upon such theory?”

¶31The italics and the sub-quotations are those of the opinion of the court below, and the words embraced therein have reference to the position taken by counsel for plaintiff with respect to all of the defamatory words alleged in the declaration, particularly in his closing argument before the jury, to which reference is made in a preceding part of the opinion of the court below. It is there stated that in the opinion - of the court such position, and certain violent denunciations on the part of such counsel in urging it with great vehemence, “were not justified by the evidence, aroused the ‘passion’ and ‘prejudice’ of the jury against the defendant and his wife; and the law is that if the court believe that the amount of the verdict is so out of the way as to evince ‘passion’ or ‘prejudice’ on the part of the jury, it should be set aside.”

¶32As to the violent denunciations on the part of counsel for the plaintiff, it appears from the opinion under consideration that they were considered by the judge of the trial court as improper and misleading to the jury only because, in his view of the case, they were “not justified by the evidence” on the issue of the truth of the words sought to be justified by the special plea, aforesaid. No other position *636has been taken in behalf of the defendant in the brief of counsel or in oral argument before us. And it further appears from said opinion that the trial court set aside the verdict in question as excessive and as contrary to the law and the evidence solely on the ground that the evidence in the case established the truth of the words admitted by the special plea aforesaid to have been spoken by the defendant.

¶33[11, 12] In view of our conclusion expressed above that the special plea aforesaid was improperly admitted and that we must regard the case as if there was no plea of justification therein, and hence no issue upon and no evidence of the truth of any of the defamatory words alleged and proved to have been spoken by the defendant, which could properly be considered by the jury or by the trial judge, it is at once apparent that the trial judge was in error in his conclusion that the truth of the words admitted by the special plea was established by the evidence, and hence he was in error in setting aside the verdict. There being no issue properly in the case except the general issu'e, under which the truth of the words could not be proved, there was nothing upon which the trial judge could base the conclusion on which he set aside the verdict. The presumption of falsehood which the law attaches to all defamatory words was unrebutted, and that they were false was the conclusion which the jury and the trial judge were compelled to reach as their only conclusion upon all of the evidence properly in the case.

¶34Such being our view of the case, it is entirely unnecessary for us to review the authorities on the subject, which are cited in argument, or to set forth here the rules governing our action where there • is conflict in the testimony, and where we are asked to reverse the action of a trial court in setting aside a verdict and granting a new trial, as distinguished from cases in which we are asked to reverse the *637action of the trial court in refusing to set aside a verdict and grant a new trial. These rules are now well established by the decisions of this court, and none of them are applicable so as to uphold the action of the trial court in setting aside the verdict in the case before us, for none of such rules warrant a trial court in setting aside a verdict upon an issue of fact which is not properly in the case, nor upon a conclusion of fact to support which there is no evidence whatever properly in the case.

¶35There are other assignments of error by the plaintiff, but in view of our above stated conclusions they become immaterial and will, therefore, not be dealt with in this opinion.

¶36The case will be reversed and judgment will be entered in favor of the palintiff upon the verdict of the jury rendered on the first trial of the case.

¶37Reversed.