{ "id": 5779103, "name": "Simon Heller v. Kittielia Howard", "name_abbreviation": "Heller v. Howard", "decision_date": "1882-10-26", "docket_number": "", "first_page": "554", "last_page": "560", "citations": [ { "type": "official", "cite": "11 Ill. App. 554" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill. 308", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602317 ], "opinion_index": -1, "case_paths": [ "/ill/21/0308-01" ] }, { "cite": "92 Ill. 347", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2740322 ], "opinion_index": -1, "case_paths": [ "/ill/92/0347-01" ] }, { "cite": "79 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2687899 ], "opinion_index": -1, "case_paths": [ "/ill/79/0525-01" ] }, { "cite": "71 Ill. 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312302 ], "opinion_index": -1, "case_paths": [ "/ill/71/0576-01" ] }, { "cite": "41 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216803 ], "opinion_index": -1, "case_paths": [ "/ill/41/0141-01" ] }, { "cite": "16 Ill. 406", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "16 Ill. 139", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590785 ], "opinion_index": -1, "case_paths": [ "/ill/16/0139-01" ] }, { "cite": "15 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436603 ], "opinion_index": -1, "case_paths": [ "/ill/15/0425-01" ] }, { "cite": "2 Gilm. 730", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "33 Vt. 182", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 752164 ], "opinion_index": -1, "case_paths": [ "/vt/33/0182-01" ] }, { "cite": "2 Rich, 573", "category": "reporters:state", "reporter": "Rich.", "case_ids": [ 8861098 ], "opinion_index": -1, "case_paths": [ "/scl/31/0573-01" ] }, { "cite": "3 Chand. 26", "category": "reporters:state", "reporter": "Chand.", "opinion_index": -1 }, { "cite": "109 Mass. 193", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2107828 ], "opinion_index": -1, "case_paths": [ "/mass/109/0193-01" ] }, { "cite": "1 Denio, 488", "category": "reporters:state", "reporter": "Denio", "case_ids": [ 483923 ], "opinion_index": -1, "case_paths": [ "/denio/1/0488-01" ] }, { "cite": "81 Ill. 77", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2674754 ], "opinion_index": -1, "case_paths": [ "/ill/81/0077-01" ] }, { "cite": "52 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5300964 ], "opinion_index": -1, "case_paths": [ "/ill/52/0236-01" ] }, { "cite": "2 Gilm. 725", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560569 ], "opinion_index": -1, "case_paths": [ "/ill/7/0725-01" ] }, { "cite": "13 Ill. 271", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2581350 ], "opinion_index": -1, "case_paths": [ "/ill/13/0271-01" ] }, { "cite": "15 Vt. 250", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 }, { "cite": "2 Hun, 519", "category": "reporters:state", "reporter": "Hun,", "opinion_index": -1 }, { "cite": "3 Daly, 482", "category": "reporters:state", "reporter": "Daly", "opinion_index": -1 }, { "cite": "33 Ia. 15", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "29 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "5 Gilm. 720", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "15 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436578, 436595 ], "opinion_index": -1, "case_paths": [ "/ill/15/0228-01", "/ill/15/0228-02" ] }, { "cite": "7 J. J. Marsh. 424", "category": "reporters:state", "reporter": "J.J. Marsh.", "case_ids": [ 5549254 ], "opinion_index": -1, "case_paths": [ "/ky/30/0424-01" ] }, { "cite": "18 Penn. 489", "category": "reporters:state", "reporter": "Penn.", "opinion_index": -1 }, { "cite": "14 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "43 Miss. 725", "category": "reporters:state", "reporter": "Miss.", "opinion_index": -1 }, { "cite": "8 Mass. 121", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "3 Binn. 515", "category": "reporters:state", "reporter": "Binn.", "case_ids": [ 1791123 ], "opinion_index": -1, "case_paths": [ "/binn/3/0515-01" ] }, { "cite": "48 Md. 494", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1820698 ], "opinion_index": -1, "case_paths": [ "/md/48/0494-01" ] }, { "cite": "4 Scam. 33", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "4 Pick. 108", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2031185 ], "opinion_index": 0, "case_paths": [ "/mass/21/0112-01" ] }, { "cite": "3 Wend. 397", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2144213 ], "opinion_index": 0, "case_paths": [ "/wend/3/0397-01" ] }, { "cite": "4 Serg. & R. 551", "category": "reporters:state", "reporter": "Serg. & Rawle", "case_ids": [ 1801916 ], "opinion_index": 0, "case_paths": [ "/serg-rawl/4/0551-01" ] }, { "cite": "67 Ill. 404", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820075 ], "opinion_index": 0, "case_paths": [ "/ill/67/0404-01" ] } ], "analysis": { "cardinality": 724, "char_count": 14517, "ocr_confidence": 0.557, "pagerank": { "raw": 3.1208580162840935e-07, "percentile": 0.8606227621764821 }, "sha256": "7e158c641c0fb13dd40feeac296116239157fcf0fbb24870279825050fc7a5db", "simhash": "1:e6d17497078ca3c9", "word_count": 2486 }, "last_updated": "2023-07-14T15:01:48.859971+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Simon Heller v. Kittielia Howard." ], "opinions": [ { "text": "McAllister, J.\nAfter much consideration of this case, we are of the opinion that the judgment below should be reversed, and a new trial awarded for two reasons, either of which is sufficient to require that result.' The first ground is error in the first two instructions given by the court to the jury, for plaintiff below; the second, error in the admission of testimony for the same party. In order to an understanding of the defect in the instructions, it will be necessary to state that this is one of that kind of cases (at least it was so considered by the plaintiff\u2019s attorney), where the words spoken did not ,_per se, convey the meaning which the plaintiff would and which she has, assigned to them, viz., the imputation that she had feloniously stolen a parasol, and had committed the crime of larceny. It was necessary that the words should receive explanation, by reference to certain extrinsic facts or matters, such as that defendant was a storekeeper, and had had a parasol feloniously stolen from his store two weeks before the time of the speaking of the words set out. Without the averment of such extrinsic facts of a parasol having been so stolen, and a conversation or colloquium in reference thereto, an innuendo assigning such meaning to the words would not make the declaration good, or show a cause of action. Chit. on Pl. * 400; Hawkes v. Hawkes, 8 East, 427; Van Vechten v. Hopkins, 5 Johns. R. 211.\nIt is enough that the pleader, in both counts of the declaration, has averred such extrinsic matters and a colloquium in reference thereto, thus connecting such extrinsic matter and the slanderous words together. It is the settled rule of law that wherever a specific meaning is given to the terms of a libel or oral slander, by connecting it with previous matter, the whole must be proved as being essential to the nature and identity of the charge. 2 Stark. on Ev. Part 1,* 629; 3 Selw. N. P. 1,067; 2 Greenleaf on Ev. \u00a7 413; Strader v. Snyder, 67 Ill. 404.\nIf the extrinsic matter is imperatively required to be proved, with its connection with the words spoken, as a whole, in order to support the cause of action, then it is indispensable that such extrinsic matter should be submitted to, and found by the jury to exist as alleged, in order to find a verdict for the plaintiff. The instructions under consideration wholly omit to do so, and were, therefore, fatally erroneous. They were defective under the circumstances of the case, in that they neither of them contained the hypothesis that the words were spoken in the presence and hearing of some third person. It was necessary that they should have been so spoken, in order to constitute a publication, and complete the injury. There was more than one conversation between the parties; but the plaintiff has clearly counted in her declaration, upon the first one alone. How the evidence leaves it extremely doubtful, if any third person heard and understood that conversation in any such sense as is ascribed in-plaintiff\u2019s innuendo. At the last conversation, plaintiff brought a witness, and specially requested defendant to then repeat what he had said in the first. Concede that lie had complied, and repeated the whole or a portion of it; that would have no tendency to show that any third person heard such first conversation at the time it was had; and it will not do to say that the repetition of it in the presence and hearing of the witness who came with plaintiff, constituted of itself such legal injury as to give rise to an action. The repetition was at her special request, and the maxim volenti non fit ingivria, will apply.\nLastly, the paper purporting to be a receipted bill of Morgenthau Bros. & Co. for a parasol sold to a Miss Howard, May 17, 1881, and admitted by the court in evidence, against the objection of the defendant, was incompetent, since the parties purporting to have made it were neither parties to the record, parties in interest, or agents of the defendant, but were strangers. The defendant was entitled to have all evidence against him given upon oath and the witnesses subject to cross-examination. Such evidence was res inter alios acta. The general rule is that \u201c an admission by a stranger can not be received as evidence against any party, for -it may have been made, not because the fact admitted was true, but from motives and under circumstances entirety collateral, or even collusively, and for the very purpose of being offered in evidence\u201d: 1 Starkie on Evidence,* 59; Longnecker v. Hyde, 6 Binney, 1; Cutbush v. Gilbert, 4 Serg. & R. 551; Warner v. Price, 3 Wend. 397; Jacobs v. Putnam, 4 Pick. 108; Spargo v. Brown, 9 Barnw. & Cres. 935; Melody v. The People, 8 Bradwell, 487.\nFor the reasons stated the judgment of the court below must be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "McAllister, J." } ], "attorneys": [ "Messrs. Moses & Hewman, for appellant;", "Mr. Philip Stein, for appellee;" ], "corrections": "", "head_matter": "Simon Heller v. Kittielia Howard.\n1. Slander. \u2014 Whenever a specific meaning is given to the terms of a libel or oral slander, by connecting it with previous matter, the whole must be proved as being essential to the nature and identity of the charge.\n2. Extrinsic matter. \u2014 If extrinsic matter is imperatively required to be proved, with its connection with the words spoken, in order to support the cause of action, then such extrinsic matter should be submitted to and found by the jury to exist as alleged.\n3. Publication op slander. \u2014 It is necessary that the words should be spoken in the presence and hearing of a third person, in order to constitute a publication of the slander.\n4. Repetition in presence of a witness. \u2014 The repetition of the words first spoken in the presence of a third person, does not prove that they were originally spoken in the presence of' anor.her; and the repetition being made at the special request of the plaintiff, does not of itself constitute such a legal injury as will give rise to an action.\n5. Evidence \u2014 Admissions by a stranger. \u2014 -An admission by a stranger can not be received as evidence against any party.\nAppeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.\nOpinion filed October 26, 1882.\nThis was action for slander, brought by appellee Kittielia Howard, against appellant Simon Heller. The declaration is in two counts. The first is in substance that the defendant was, at the time when, etc., carrying on a dry goods business in the city of Chicago; that a certain parasol had been feloniously stolen and carried away out of said store, etc.; that, June 11, 1881, the plaintiff was in said store, and then and there had with her a certain parasol; that in a certain discourse which the defendant then and there had with the plaintiff in the presence and hearing of divers persons, of and concerning the plaintiff, and of and concerning the said parasol so stolen as aforesaid, and of and concerning the parasol in the possession of the said plaintiff, the said defendant falsely and maliciously spoke and published of and concerning the said plaintiff, and of and concerning said parasol so stolen, and of the parasol in the possession of the plaintiff, the false, malicious\u2019 and scandalous words, viz.: \u201c This,\u201d (meaning the said other parasol in the plaintiff\u2019s possession as aforesaid) \u201c is a parasol that was taken out of here|\u201d(meaning out of said store two weeks ago, and thereby meaning that said parasol, then and there in the possession of the plaintiff as aforesaid, was the very same parasol that had been feloniously stolen, etc., from said store). \u201c You\u201d (meaning the plaintiff) \u201c were in here\u201d (meaning in said store) \u201cat the time it\u201d (meaning said parasol so stolen as aforesaid) \u201c was taken \u201d (and thereby then and there meaning that the plaintiff had been, and was guilty of feloniously stealing, taking and carrying away said parasol so feloniously stolen, taken and carried away in and out of said store as aforesaid). \u201c This \u201d (meaning the said other parasol in the plaintiff\u2019s possession as aforesaid) \u201c is not your\u2019\u2019(meaning the plaintiff\u2019s) \u201c parasol.\u201d \u201c I\u201d (the defendant meaning) \u201cshall send it\u201d (said last mentioned parasol meaning) \u201c to the lady that owns it \u201d (said last mentioned parasol meaning) \u201c and have it \u201d (said last mentioned parasol meaning) \u201c identified as hers \u201d (meaning said lady\u2019s) \u201cparasol.\u201d To all of which the plaintiff then and there answered by saying to the defendant: \u201cWhy, Mr. Iieller,\u201d (the defendant, meaning) \u201cI\u201d (meaning the plaintiff) \u201c bought this parasol \u201d (meaning said other parasol in plaintiff\u2019s possession as aforesaid) \u201cabout three weeks ago at Morgenthan\u2019s store, at the corner of State and Monroe streets, and 1\u201d (the plaintiff meaning) \u201cpaid one dollar and seventy-five cents for it,\u201d (said last mentioned parasol meaning). \u201cI\u201d (meaning the plaintiff) \u201cam willing to have the clerk identify it,\u201d (said last mentioned parasol meaning) \u201cthat\u201d (meaning said clerk) \u201csold it\u201d (said last mentioned parasol meaning) \u201c to me,\u201d (meaning the plaintiff), whereupon the defendant there in the presence of said persons further said of and concerning said plaintiff: \u201c That parasol \u201d (meaning said last mentioned parasol) \u201c was never bought this year, and furthermore, you,\u201d (the plaintiff meaning) \u201c never bought it \u201d (said last mentioned parasol meaning), and thereby then and there meaning that the plaintiff had been and was guilty of feloniously stealing and carrying away s\u00e1id other parasol in the plaintiff\u2019s possession as aforesaid.\nThe second count was substantially the same as the first. The defendant pleaded the general issue of not guilty. On the trial the plaintiff gave evidence tending to prove a portion of the conversation with the defendant as alleged. The plaintiff testified that during such conversation she told defendant that she had bought the parasol, which she then had in her possession, three weeks ago at Morgenthau\u2019s and paid $1.75 for it. In order to substantiate this statement, the court permitted the plaintiff\" against the objection and exception of the defendant, to give in evidence the following receipted bill:\nSTATEMENT.\nChicago, III., May 17, 1881.\nMiss Howard,\nTo Morgenth\u00e1u Bros. & Co. Dr.\n163 State St., (opposite Palmer House.)\n1 Parasol.........................................$1.75\nMorgenth\u00e1u Bros. & Co., |\n163 State St., Chicago.\nA. E. I\nOn behalf of plaintiff in error, the court gave to the jury the following instructions:\n\u201cHo. 1. If the jury believe from the evidence that there was a conversation or conversations between Miss Howard and the defendant Heller, as charged in the declaration herein, and that in the course of said conversation or conversations said Heller spoke to Miss Howard, the plaintiff in this case, and Miss Howard spoke to him in substance the words as charged in the declaration, or in either count thereof, then the jury will find a verdict for the plaintiff, and assess the damages; and in this connection, the court instructs the jury that the words need not be proven precisely as stated in the declaration; it is sufficient if they be proven substantially.\n\u201cHo. 2. The jury are further instructed by the court that all the words charged in the declaration, or in either count thereof, need not be proven to maintain the action, unless it takes them all to constitute the slander, if any; and if they believe from the evidence that a sufficient number of the words charged in the declaration, or in either count thereof, to amount in common acceptation to a charge of larceny against Miss Howard, have been proven to have been spoken by the defendant, then they will find him guilty and assess the damages.\u201d\nThe jury found the defendant guilty, and assessed plaintiff\u2019s damages at $700. The court overruling defendant\u2019s motion for new trial, gave judgment, and the latter appeals to this court.\nMessrs. Moses & Hewman, for appellant;\nthat the essence of the injury is the effect created by the slander upon the minds of the hearers, cited Hawkinson v. Bilby, 16 M. & W. -; Hobart, 268; McKee v. Ingalls, 4 Scam. 33; Reed v. Ambridge, 6 C. & P. 308; Fawcett v. Clark, 48 Md. 494; Bornman v. Boyer, 3 Binn. 515; Hye v. Otis, 8 Mass. 121; Brite v. Gill, B. Mon. 65; Odgers on Libel and Slander, 112.\nThe general denial puts in issue the utterance of the words, of their import, and of the intent of the publication: Jarnigan v. Flemming, 43 Miss. 725; Darling v. Banks, 14 Ill. 48.\nThe meaning as avowed in the innuendo is a fact for the jury: Starkie on Slander, 561; Barger v. Barger, 18 Penn. 489; Welsh v. Eakle, 7 J. J. Marsh. 424.\nIf all the words laid are necessary to constitute the slander, then they must be proved as laid: Sandford v. Geddes, 15 Ill. 228; Patterson v. Edwards, 5 Gilm. 720; Williams v. Odell, 29 Ill. 156.\nIf no one heard the words, it is no slander: Viner\u2019s Abr. title \u201cActions;\u201d Townshend on Slander, 395; Dismond v. Brown, 33 Ia. 15; Broderick v. James, 3 Daly, 482; Haile v. Fuller, 2 Hun, 519; Lyle v. Clason, 1 Caine\u2019s Rep. 581; Hawkinson v. Bilby, 16 M. & W. 442; Smith v. Miles, 15 Vt. 250; Odgers on Slander and Libel, 150.\nWhere the plaintiff procures to be done the act of which he complains, there is no injury: Starkie on Slander, 687; King v. Warney, 5 Esp. 13; Smith v. Wood, 3 Camp. 323; Weatherstone v. Hawkins, 1 Term R. 110.\nMr. Philip Stein, for appellee;\nthat it is sufficient if the words impute a crime, whether the defendant intended to charge one or not, unless he spoke them under circumstances which the law regards as a justification, cited Hawkinson v. Bilby, 16 M. & W. 442; Gilmer v. Eubank, 13 Ill. 271; Hatch v. Potter, 2 Gilm. 725; Wilson v. Borchenius, 52 Ill. 236; Rearick v. Wilcox, 81 Ill. 77; Horn v. Mosier, 1 Denio, 488; Dale v. Harris, 109 Mass. 193; Starkie on Slander, 292; Townshend on Slander, \u00a7 68.\nIt is only where the words are spoken in a foreign language that their being understood by the hearers must be alleged and proven: Townshend on Slander, 324; Starkie on Slander, 101; 2 Greenl\u2019f\u2019s Ev. 414; Zeig v. Ort, 3 Chand. 26.\nIt is not essential that the words in terms should charge a crime; if such is their natural inference, they are actionable: Morgan v. Livingston, 2 Rich, 573; Cass v. Anderson, 33 Vt. 182.\nRepetition of the slander may be shown in aggravation of damages: Hatch v. Potter, 2 Gilm. 730; Sloan v. Petrie, 15 Ill. 425; Beasly v. Meigs, 16 Ill. 139; Spencer v. McMasters, 16 Ill. 406; Harbison v. Shook, 41 Ill. 141; Thomas v. Fischer, 71 Ill. 576; Stowell v. Beagle, 79 Ill. 525; Schmisseur v. Kreilich, 92 Ill. 347; Fidler v. McKinley, 21 Ill. 308." }, "file_name": "0554-01", "first_page_order": 550, "last_page_order": 556 }