Sherman v. Rogers — 54 N.Y. St. Rep. 61

Majority

p. 61

George H. Sherman, Resp’t, v. Walter C. Rogers, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 8, 1893.)

Headnote

1. Slander—-Evidence.

In an action for slander in charging- plaintiff with being a thief and stealing a wagon from defendant, the answer was a general denial, and alleged in mitigation that defendant ivas excited by charges made against him by plaintiff, and in consequence thereof used stronger language than he would otherwise. On the trial there was no denial of the language alleged to have been used, but defendant claimed that it related to a transaction which was not in itself a larceny, and that the hearers of the words knew to what transaction they related. Held, that it was not error to exclude evidence as to the nature of the transaction, as it was not proper under the answer.

2. Same—Damages.

In such an action a verdict for $600 is not so large as to évince passion or prejudice on the part of the jury, and should not be interfered with as excessive.

Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff against the defendant, in an action for oral slander, for six hundred dollars ($600) and costs.

The words charged in the complaint are “ You’re a thief; you’re a damned thief; you have stole a wagon from me; you’re a robber and I can prove it.”

The answer was a general denial, and alleged in mitigation of damages that at the time of uttering the words charged in the complaint the defendant was greatly excited in consequence of charges made by plaintiff against him, and the language used by him in consequence of such excitement was stronger than it would otherwise have been.

King & Ashley (J. M. Whitman, of counsel), for app’lt; Lyman Jenkins (H. A. Howard, of counsel), for resp’t.

The words charged in the complaint were on the trial proved to have been uttered substantially as alleged. The case discloses that the plaintiff came to a shop in which the defendant was employed and asked who could give him the

p. 62

price of painting a wagon. The defendant replied, “ Oh, you go along I don’t want anything to do with you; you’ve stole a wagon from me and sold it, and I want nothing to do with you.”'

Defendant then started to go out of the shop an.d said “ Who. does painting here ? ” The answer was, “ Mr. Sherman does our painting.” Rogers spoke to the man in his wagon, “Drive on, Charlie, I don’t want anything to do with that man, he is a thief; he stole a wagon from me once; he can’t have any work of mine.”

Sherman said: “Hold on, you darned sucker, I will call you down sometime for calling me these names; you have no right to call me these names.” Defendant said: “You’re a thief and I can prove it." The evidence discloses no denial of this language by the defendant on the trial; but it is urged that evidence was offered by the defendant tending to show that the charges made by the defendant against the plaintiff relate to a transaction which was in itself not a larceny, and that the hearers of these actionable words knew to what transaction they related, and knew that they did not convey or intend to convey the charge of the crime of larceny; but we do not think that contention is justified by the proof.

It is also urged by the appellant that the court erred in excluding certain offers of the defendant tending to prove the nature of the transaction to which the words related which are claimed to be actionable; but we fail to see that the learned trial judge committed any error in excluding evidence. The evidence excluded, which is claimed by the appellant to be error, was not proper under the answer, and we think the court went as far as the rules of evidence justified, in admitting the witnesses to answer what, they understood from the charges made by the defendant.

It is also urged that the damages in this case were excessive, and that the refusal of the learned trial judge to set aside the verdict on that ground on a motion made upon the minutes was error. We do not think that the verdict in this case was so large as to evince passion or prejudice on the part of the jury. In actions of this character the rule is well settled that the verdict of a jury cannot be interfered with by the court, unless it is so large as to be evidence in itself that the jury in rendering the verdict, was actuated by passion or prejudice, or some undue influence, and not solely by the evidence. The charge in this case was proved beyond controversy. It was not sought to be justified; and we see no circumstance, either disclosed by the evidence or in the offers of proof made by the defendant, calculated in any considerable degree to mitigate the gravity of the charge made against the plaintiff.

On the whole case, we see no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.