{ "id": 6046035, "name": "Daniel Welker v. John O. Butler", "name_abbreviation": "Welker v. Butler", "decision_date": "1884-10-10", "docket_number": "", "first_page": "209", "last_page": "213", "citations": [ { "type": "official", "cite": "15 Ill. App. 209" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "12 Johns. (N. Y.) 239", "category": "reporters:state", "reporter": "Johns. Ch.", "opinion_index": -1 }, { "cite": "2 N. H. 398", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6756848 ], "opinion_index": -1, "case_paths": [ "/nh/2/0398-01" ] }, { "cite": "12 Pick. (Mass.) 101", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2060323 ], "opinion_index": -1, "case_paths": [ "/mass/29/0104-01" ] }, { "cite": "21 Ind. 66", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1477582 ], "opinion_index": -1, "case_paths": [ "/ind/21/0066-01" ] }, { "cite": "22 Iowa, 242", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2287329 ], "opinion_index": -1, "case_paths": [ "/iowa/22/0242-01" ] }, { "cite": "17 Ohio St. 233", "category": "reporters:state", "reporter": "Ohio St.", "opinion_index": -1 }, { "cite": "33 Ala. 78", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3158287 ], "opinion_index": -1, "case_paths": [ "/ala/33/0078-01" ] }, { "cite": "15 Ill. 37", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436674 ], "opinion_index": -1, "case_paths": [ "/ill/15/0037-01" ] }, { "cite": "14 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2584697 ], "opinion_index": -1, "case_paths": [ "/ill/14/0046-01" ] }, { "cite": "5 Ind. 385", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1448426 ], "opinion_index": -1, "case_paths": [ "/ind/5/0385-01" ] }, { "cite": "20 Mo. 9", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "30 Mo. 502", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8852164 ], "opinion_index": -1, "case_paths": [ "/mo/30/0502-01" ] }, { "cite": "4 Scam. 30", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 6095537 ], "opinion_index": -1, "case_paths": [ "/ill/5/0031-01" ] }, { "cite": "29 Me. 247", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8846884 ], "opinion_index": -1, "case_paths": [ "/me/29/0247-01" ] }, { "cite": "62 Ill. 115", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606320, 2606301 ], "opinion_index": -1, "case_paths": [ "/ill/62/0115-01", "/ill/62/0115-02" ] }, { "cite": "52 Ill. 304", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "99 Ill. 123", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2830329 ], "opinion_index": -1, "case_paths": [ "/ill/99/0123-01" ] }, { "cite": "83 Ill. 354", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2662923 ], "opinion_index": -1, "case_paths": [ "/ill/83/0354-01" ] }, { "cite": "20 Ill. 325", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2594982 ], "opinion_index": -1, "case_paths": [ "/ill/20/0325-01" ] }, { "cite": "2 Gilm. 34", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2559462 ], "opinion_index": -1, "case_paths": [ "/ill/7/0034-01" ] }, { "cite": "58 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5236767 ], "opinion_index": -1, "case_paths": [ "/ill/58/0417-01" ] }, { "cite": "58 Ill. 421", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "41 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216803 ], "opinion_index": -1, "case_paths": [ "/ill/41/0141-01" ] }, { "cite": "79 Ill. 60", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "106 Ill. 175", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2783624 ], "opinion_index": -1, "case_paths": [ "/ill/106/0175-01" ] }, { "cite": "92 Ill. 348", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "41 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "67 Ill. 484", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "58 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "4 Scam. 32", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "68 Ill. 115", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2628098 ], "opinion_index": 0, "case_paths": [ "/ill/68/0115-01" ] }, { "cite": "15 Ill. 37", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436674 ], "opinion_index": 0, "case_paths": [ "/ill/15/0037-01" ] } ], "analysis": { "cardinality": 526, "char_count": 8526, "ocr_confidence": 0.54, "pagerank": { "raw": 1.7197138554655269e-07, "percentile": 0.703730603598897 }, "sha256": "cfbbeea27c8c5f75bdab790ffaf7587261c3e020f42c8c593799cde03d4c9a7b", "simhash": "1:b7b9f329c84dad06", "word_count": 1512 }, "last_updated": "2023-07-14T20:31:21.776284+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Daniel Welker v. John O. Butler." ], "opinions": [ { "text": "Wall, J.\nThis was an action on the case for slander. The words charged imputed to the plaintiff the crime of larceny. The defendant plead, first, not guilty; second, justification.\nA trial before the court and a jury resulted in a verdict for defendant, upon which the court, after overruling a motion for a new trial, rendered judgment against the plaintiff for cost.\nVarious errors are assigned relating to the action of the court in admitting evidence, and in giving and refusing instructions.\nIt is first objected that the court permitted the defendant to prove the general reputation of the plaintiff.\nSuch proof is admissible, and while in this case the court may have permitted it to go too much into detail, yet we discover nothing in this respect for which the judgment should be reversed.\nObjection is taken to an alleged remark of the court in the presence and hearing of the jury, calculated to prejudice the plaintiff.\nWhile this is one of the points contained in the motion for a new trial, yet we are unable to find anything in the abstract or the record upon which to base it, and it is therefore to be disregarded.\nIt is next urged that by the first instruction for defendant, the jury were advised that if the words charged were not spoken maliciously, and the character of the plaintiff was not injured thereby, then the verdict should' be for defendant. While the law implies malice from the use of words actionable per se, yet this implication may be explained and rebutted by circumstatices.\n\u201cWords standing alone may import malice and indi- \u2022 cate a wicked intent. Surround them with the circumstances under which they were spoken and the malice disappears.\u201d Zuckerman v. Sonnenschein, 68 Ill. 115; McKee v. Ingalls, 4 Scam. 32.\nIt may also be shown that the words were used with reference to a known act, and were so understood by those present, and that such act was not, in point of law, a felony. Ayers v. Grider, 15 Ill. 37.\nIt was proper to submit the intent of the publication to the jury.\nThe court gave for the defendant the following instruction:\n3. The court instructs the jury that if they, believe from the evidence that the plaintiff, Welker, was at the time the language is alleged to have been used, taking the property of the defendant with the intention of converting it to his own use, then they will find for the defendant.\nThis was clearly erroneous; the defense of justification could be made only by establishing every element necessary to constitute the crime of larceny, though it would, under the present statute, require but a preponderance of testimony for this purpose, R. S. Ch. 126, Sec. 3.\nThis instruction, however, would warrant the jury\u2014indeed, require them\u2014to find for defendant if the plaintiff had been guilty of a mere trespass with regard to the defendant\u2019s property, omitting entirely the element of an intent to steal, the felonious intent which is a necessary ingredient of the crime.\nIt was not even important under this instruction that the plaintiff should have known it was the property of defendant.\nThis instruction, when applied to the peculiar facts of the case, must have had great weight with the jury in producing the verdict for defendant.\nThe fifth instruction was too loose and general in not calling attention to the facts necessary to sustain the defense. Mor do we think the objections to these instructions were cured by those given for plaintiff.\nException is taken to the sixth instruction given for defendant.\nIts effect was to advise the jury that proof of the words therein quoted did not amount to proof of the words alleged in the declaration, to which there is no just ground of objection. It was a question for the jury whether the defendant uttered the words alleged; this was put in issue by the plea of not guilty, and the plaintiff was bound to prove the substance of the words so alleged, or some one set of them, notwithstanding the plea of justification, and if he failed to do so he could not recover.\nThe court refused the fourth instruction asked by plaintiff, that if the defendant had charged the plaintiff, as alleged, the mental suffering thereby occasioned to plaintiff, if any such had been proved, was a proper element to be considered in fixing the damages.\nThis should have been given. Adams v. Smith, 58 Ill. 481.\nAs to the merits of the case we express no opinion, and will only say in this regard, that had the jury been properly instructed we would not interfere.\nEor the errors indicated the judgment will be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Wall, J." } ], "attorneys": [ "Mr. J. M. Freels and Mr. L. II. Hite, for plaintiff in error;", "Messrs. Messick & Rhodes and Messrs. Flannigen & Can-by, for defendant in error;" ], "corrections": "", "head_matter": "Daniel Welker v. John O. Butler.\n1. Slander\u2014General' reputation of plaintiff.\u2014In an action on the ease for slander, the words charged imputing the crime of larceny, it is not error to permit the defendant to prove the general reputation of the plaintiff.\n2. Malice.\u2014While the law implies malice from the use of words actionable per se, yet this implication may be explained and rebutted by circumstances. The words may be shown to have been used with reference to a known act and to have been so understood by those present, and that such act was not in point of law a felony. It is proper to submit the intent of the publication to the jury.\n3. Instructions.\u2014An instruction that \u201cif the jury believe from the evidence that the plaintiff was at the time the language is a'leged to have been used, taking the property of the defendant with the intent of converting it to his own use. then they will find for the defendant.\u201d Held, clearly erroneous. The defense of justification could be made only by establishing every element necessary to constitute the crime of larceny.\n4. Mental suffering\u2014Damages.\u2014It was error for the court to refuse the instruction that if the defendant had charged the plaintiff as alleged, the mental suffering thereby occasioned to plaintiff, if any such had been proved, was a proper element to be considered in fixing the damages.\n5. Bill of exceptions.\u2014Remarks of court or counsel on the trial of a cause, which are complained of as error, must be embodied in the bill of exceptions or they will not be noticed.\nError to the City Court of East St. Louis; the Hon. War. P. Launtz, Judge, presiding.\nOpinion filed October 10, 1884.\nMr. J. M. Freels and Mr. L. II. Hite, for plaintiff in error;\nthat from the speaking of actionable words, malice is implied and damage presumed and need not be proved, cited Flagg v. Roberts, 67 Ill. 484; Harbison v. Shook, 41 Ill. 146; Schmisseur v. Kreilich, 92 Ill. 348; Mitchell v. Milholland, 106 Ill. 175; 1 Chitty on Pleading, 16 Ed. *411, *412.\nDefendant must prove the truth of the charge of larceny or respond in damages for the wrong: Miller v. Johnson, 79 Ill. 60; Harbison v. Shook, 41 Ill. 141; Conley on Torts, 200.\nAs to damages for mental suffering: Adams v. Smith, 58 Ill. 421.\nMessrs. Messick & Rhodes and Messrs. Flannigen & Can-by, for defendant in error;\nas to evidence of general reputation of plaintiff being admissible, cited Adams v. Smith, 58 Ill. 417; Regnier v. Cabot, 2 Gilm. 34; Sheahan v. Collins, 20 Ill. 325; Heard on Libel and Slander, \u00a7 299; 2 Greenleaf on Ev., \u00a7 424.\nAs to embodying remarks of counsel assigned as error in bill of exceptions: Kepperly v. Ramsd\u00e9n, 83 Ill. 354; Earll v. People, 99 Ill. 123; O'Hara v. King, 52 Ill. 304.\nWhen words actionable per se are spoken under circumstances tending to show a want of malice, the intent of the publication should be left to the jury under the proof: Zuckerman v. Sonnenschein, 62 Ill. 115; 5 Wait\u2019s Actions and Defenses, 748; Jarvis v. Hathaway, 3 Johns. (N. Y.), 180; Haynes v. Haynes, 29 Me. 247; McKee v. Ingalls, 4 Scam. 30; Weaver v. Hendrick, 30 Mo. 502; Weed v. Bibbins, 32 Barb. (N. Y.), 315; Usher v. Severance, 20 Mo. 9; Turrill v. Dolloway, 26 Wend. (N. Y.), 383; Jones v. Rivers, 3 Brev. (S. C.), 95; Thompson v. Grimes, 5 Ind. 385; Cregier v. Bunton, 2 Rich. (S. C.), 395.\nWords actionable, perse, are not so, when spoken of a transaction not amounting to the crime charged, if known to the hearers to be so spoken: Darling v. Banks, 14 Ill. 46; Ayers v. Grider, 15 Ill. 37; Pannier v. Anderson, 33 Ala. 78; Alfele v. Wright, 17 Ohio St. 233; McCaleb v. Smith, 22 Iowa, 242; Bunton v. Worley, 4 Bibb (Ky.), 38; Carmichael v. Shiel, 21 Ind. 66; Allen v. Hillman, 12 Pick. (Mass.) 101; Cock v. Weatherby, 13 Miss. (5 Smed. & M.) 333; Donnell v. Fisk, 11 Metc. (Mass.) 551; Blanchard v. Fisk, 2 N. H. 398; Wall v. Haskins, 5 Ired. (N. C.) 177; Dexter v. Taber, 12 Johns. (N. Y.) 239." }, "file_name": "0209-01", "first_page_order": 213, "last_page_order": 217 }