{ "id": 863684, "name": "Alexander Sword, Sr., v. Josephine Martin", "name_abbreviation": "Sword v. Martin", "decision_date": "1887-06-20", "docket_number": "", "first_page": "304", "last_page": "307", "citations": [ { "type": "official", "cite": "23 Ill. App. 304" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "55 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5272794 ], "opinion_index": -1, "case_paths": [ "/ill/55/0213-01" ] }, { "cite": "3 Ill. App. 340", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5776745 ], "opinion_index": -1, "case_paths": [ "/ill-app/3/0340-01" ] }, { "cite": "71 Ill. 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312302 ], "opinion_index": -1, "case_paths": [ "/ill/71/0576-01" ] }, { "cite": "29 Iowa, 53", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2281481 ], "opinion_index": -1, "case_paths": [ "/iowa/29/0053-01" ] }, { "cite": "4 Iowa, 453", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2271586 ], "opinion_index": -1, "case_paths": [ "/iowa/4/0453-01" ] }, { "cite": "11 N. 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App.", "case_ids": [ 4787594 ], "opinion_index": -1, "case_paths": [ "/ill-app/2/0576-01" ] }, { "cite": "92 Ill. 347", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2740322 ], "opinion_index": -1, "case_paths": [ "/ill/92/0347-01" ] }, { "cite": "16 Ill. 38", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2588580 ], "opinion_index": -1, "case_paths": [ "/ill/16/0038-01" ] }, { "cite": "44 Ill. 42", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221961 ], "opinion_index": -1, "case_paths": [ "/ill/44/0042-01" ] }, { "cite": "40 Ill. 477", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 426065 ], "opinion_index": -1, "case_paths": [ "/ill/40/0477-01" ] }, { "cite": "29 Ill. 456", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2452367 ], "opinion_index": -1, "case_paths": [ "/ill/29/0456-01" ] }, { "cite": "15 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436578, 436595 ], "opinion_index": 0, "case_paths": [ "/ill/15/0228-01", "/ill/15/0228-02" ] }, { "cite": "2 Gil. 720", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": 0 }, { "cite": "1 Scam. 187", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2482980, 2479991 ], "opinion_index": 0, "case_paths": [ "/ill/2/0187-02", "/ill/2/0187-01" ] }, { "cite": "71 Ill. 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312302 ], "opinion_index": 0, "case_paths": [ "/ill/71/0576-01" ] }, { "cite": "44 Ill. 42", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221961 ], "opinion_index": 0, "case_paths": [ "/ill/44/0042-01" ] } ], "analysis": { "cardinality": 419, "char_count": 7291, "ocr_confidence": 0.486, "pagerank": { "raw": 1.0997720922370316e-07, "percentile": 0.5679033796951096 }, "sha256": "1d66a496544ff1906fe6905518ef50f33b34bc47cca42e57d89f2bf518c470aa", "simhash": "1:88ec00a9975f3e9e", "word_count": 1266 }, "last_updated": "2023-07-14T21:14:28.772601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Alexander Sword, Sr., v. Josephine Martin." ], "opinions": [ { "text": "Per Curiam.\nThis was au action for slander brought by defendant in error against the plaintiff in error. The declaration, alleging plaintiff to be an unmarried woman, charged the speaking of the following words: \u201cJohn Binning knocked up Charles Martin\u2019s daughter (meaning plaintiff); she (meaning plaintiff) has gone down below to her grandmother\u2019s to have a young one.\u201d \u201c Charles Martin\u2019s girl (meaning plaintiff) has gone to Sugar Island to have a baby.\u201d \u201cShe (meaning plaintiff) has gone to her grandmother\u2019s to have a baby.\u201d \u201cHe (defendant) heard that Charles Martin\u2019s daughter (meaning plaintiff) had a baby.\u201d Plea of general issue. Trial, verdict of guilty and assessing plaintiff\u2019s damages at \u00a71,225; defendant moves for a new trial; motion overruled and judgment against defendant for amount of the verdict and costs. To reverse said judgment this writ of error is prosecuted. Various errors are assigned.\nIt is a well established rule in actions for slander, that the allegations and proof must correspond; the plaintiff must prove the words alleged in the declaration, or so much of them as will sustain his cause of action. It is not enough to prove other words of like import and meaning; equivalent words or expressions will not suffice; all of the words averred need not be proved, unless it takes all of them to constitute the slander. Words spoken affirmatively are not sustained by proof of words spoken in the way of interrogation. And proof of words spoken to a person, will not support a count for words spoken of a person. Slocumb v. Kuykendall, 1 Scam. 187; Patterson v. Edwards, 2 Gil. 720; Sanford v. Gaddis, 15 Ill. 228; Baker v. Young, 44 Ill. 42; Thomas v. Fischer, 71 Ill. 576. The words proved are, \u201cJohnnie Binning knocked up Charles Martin\u2019s girl\u201d TSTye, witness for plaintiff testifies: \u201c He asked me if I had heard of it; I told him no. That was about knocking up this girl; getting her in the family way is what he meant, of course. I told him no. He then said it was the general talk.\u201d Stewart, testified for plaintiff: \u201cHad conversation at Sword\u2019s (defendant\u2019s) place last of March or 1st of April, 1884. Sword said, have, you heard that Charlie Martin\u2019s daughter was knocked up. I told him I had not heard it. He said it was so. I asked him where she was and lie said she had gone down to her grandmother\u2019s, he supposed, to get rid of it. lie said he heard she had been sick down there. I asked him who did it. He said they said it was Johnnie Binnings.\u201d The proof does not support either of the averments in the declaration. The averment, \u201cJohnnie Binning knocked up Charlie Martin\u2019s daughter,\u201d is not sustained by proof that \u201cJohnnie Binnings knocked up Charles Martin\u2019s girl.\u201d There being nothing in the declaration to indicate that the words proven referred to the plaintiff\u2014no invendo that the language employed, \u201c Charles Martin\u2019s girl,\u201d had any reference to the plaintiff. Neither is it sustained by proof, \u201cHave you heard that Charles Martin\u2019s daughter was knocked up? I told him I had not heard it. He said it was so.\u201d The averment \u201c she (meaning plaintiff) has gone down below to her grandmother\u2019s to have a young one \u201d is not sustained by proof of \u201c she had gone down below to her grandmother\u2019s, he supposed to get rid of it.\u201d Neither does this proof sustain the averment, \u201c Charles Martin\u2019s girl (meaning plaintiff) has gone to Sugar Island to have a baby\u201d or the averment \u201cshe (meaning plaintiff) has gone to her grandmother\u2019s to have a baby;\u201d or the averment \u201c He (defendant) heard that Charles Martin\u2019s daughter (meaning plaintiff) had a baby.\u201d The court erred in not excluding the evidence from the jury on the ground of a variance between the allegations and proof. In view of what we have said and in the light of the authorities, sajora, the instructions given for the defendant in error that authorized a recovery on \u2022proof of words, the substance and meaning of which would be the same as those averred in the declaration, or that allowed the repetition of words, the substance and meaning of which would be the same of those averred in the declaration, to be considered by the jury in estimating the amount off damages sustained by plaintiff, did not announce correct propositions of law and should not have been given.\nFor the errors herein indicated the judgment is reversed and cause remanded.\nReversed amd rema/nded.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Messrs. Kay & Euans and T. B. Harris, for plaintiff in error.", "'Messrs. Doyle, Morris & Pierson, for defendant in error." ], "corrections": "", "head_matter": "Alexander Sword, Sr., v. Josephine Martin.\nSlander\u2014Allegations and Proofs Must Correspond\u2014Instructions.\nIn an action for slander the allegations and proofs must correspond. The plaintiff must prove the words alleged in the declaration, or so much of them as will sustain his cause of action. It is not enough to prove other words of like import and meaning.\n[Opinion filed June 20, 1887.]\nIn eeroe to the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.\nMessrs. Kay & Euans and T. B. Harris, for plaintiff in error.\nTo authorize a recovery in slander, the plaintiff must prove the words alleged in his declaration, or such of them as will establish the slander charged; other words of like import and meaning will not suffice, nor is it sufficient that equivalent words or expressions are proved, and words which qualify or limit the meaning of those counted on will defeat a recovery. Welborn v. Odell, 29 Ill. 456; Crotty v. Morrissey, 40 Ill. 477; Baker v. Young, 44 Ill. 42; Norton v. Gordon, 16 Ill. 38; Schmisseur v. Kreilich, 92 Ill. 347; Albin v. Parks, 2 Ill. App. 576.\n'Messrs. Doyle, Morris & Pierson, for defendant in error.\nThe meaning of the rule in relation to variance between proof and declaration seems to be that if the words charged to have been spoken as proved, but with the omission or addition of others not all varying or affecting their sense, the variance will not be regarded. Berry v. Dryden, 7 Mo. 334.\nIt is sufficient if the words alleged and those proved are the same in substance. Estes v. Antrobus, 1 Mo. 197.\nThe law does not require literal proof of the words as given in the declaration, but only proof of words of the same sense and import. The witness will not be permitted to give merely his construction of the language used or the impression which the conversation made on his mind, without giving the conversation itself. He must state the language used in its connection with the subject of the conversation as near as he can recollect it, and if this does not differ in its essential meaning from the words alleged in the declaration, though it may in the forms of its expression, it will sufficiently support the averment. There is nothing more difficult than for a witness to recollect the exact language used by another, and to require this would be to defeat recoveries in actions for verbal slander in almost every instance. Williams v. Miner, 18 Conn. 464; Baldwin v. Soule, 6 Gray, 321; Paysou v. Macomber, 3 Allen, 69; Robbins v. Fletcher, 101 Mass. 115; Chance v. Sherman, 119 Mass. 387; Bassett v. Spofford, 11 N. H. 127; McClenloch v. Crich, 4 Iowa, 453; Desmond v. Brown, 29 Iowa, 53.\nThe rule in slander cases does not require strict proof of the words as laid, but only requires that they be substantially proved. Thomas v. Fisher, 71 Ill. 576; McGregor v. Eakin, 3 Ill. App. 340; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213." }, "file_name": "0304-01", "first_page_order": 300, "last_page_order": 303 }