{ "id": 5081990, "name": "Emanuel Tottleben v. Boss Blankenship", "name_abbreviation": "Tottleben v. Blankenship", "decision_date": "1895-03-23", "docket_number": "", "first_page": "47", "last_page": "51", "citations": [ { "type": "official", "cite": "58 Ill. App. 47" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "52 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5300964 ], "opinion_index": 0, "case_paths": [ "/ill/52/0236-01" ] }, { "cite": "4 Scam. 32", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "44 Ill. 42", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221961 ], "opinion_index": 0, "case_paths": [ "/ill/44/0042-01" ] }, { "cite": "60 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8499886 ], "opinion_index": 0, "case_paths": [ "/ill/60/0051-01" ] }, { "cite": "30 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5208773 ], "opinion_index": 0, "case_paths": [ "/ill/30/0373-01" ] }, { "cite": "11 Ill. 20", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2577396 ], "opinion_index": 0, "case_paths": [ "/ill/11/0020-01" ] }, { "cite": "4 Scam. 30", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 6095537 ], "opinion_index": 0, "case_paths": [ "/ill/5/0031-01" ] }, { "cite": "45 Ill. 12", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 425009 ], "opinion_index": 0, "case_paths": [ "/ill/45/0012-01" ] }, { "cite": "19 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441710 ], "opinion_index": 0, "case_paths": [ "/ill/19/0080-01" ] } ], "analysis": { "cardinality": 456, "char_count": 9121, "ocr_confidence": 0.525, "pagerank": { "raw": 4.400479698708787e-08, "percentile": 0.2761487252731723 }, "sha256": "cdbc84b02aa19a983373fcfc933a33ba0cf5e7484a5b4512d0c7add9bc66880b", "simhash": "1:2fad468edbbeb694", "word_count": 1590 }, "last_updated": "2023-07-14T20:52:30.003237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Emanuel Tottleben v. Boss Blankenship." ], "opinions": [ { "text": "Mr. Justice Sample\ndelivered the opinion of the Court.\nThe appellant in his declaration alleges appellee spoke and published of and concerning him certain false and defamatory words, which are set out in various forms, all to the effect that he maliciously charged appellant with having killed his heifer, while trespassing on the latter\u2019s premises. To willfully and maliciously kill, wound, maim or disfigure a domestic animal is punishable by imprisonment in the penitentiary for a period not less than one nor more than three years, or by a fine not exceeding $1,000, or both. Sec. 203, Chap. 33, Statute. A person wounding or maiming a trespassing domestic animal is liable under this section. Snap v. People, 19 Ill. 80.\nThe appellee, therefore, charged appellant with the commission of a crime, revolting in its character. To kill a dumb brute, because, in following its natural instincts, it seeks food on another than its owner\u2019s premises, is abhorrent. To willfully and rashly do the act implies malice. Love v. Moore, 45 Ill. 12.\nTo willfully charge the commission of the crime implies malice in law, that can not be rebutted (Gilmer v. Eubanks, 13 III. 27 L), though all the words of the conversation may be shown to determine whether that implication would arise, if the meaning is doubtful. McKee v. Ingalls, 4 Scam. 30. Or it may be shown that all the words uttered at the time did not charge any crime, and that, so considered, no crime was intended to be charged. Cooley on Torts, 199.\nIn this case the plaintiff clearly proved the slanderous charge. The defendant did not deny that he charged plaintiff with killing his heifer. In fact, he had sued the plaintiff for the value of his heifer on account of such killing, and was defeated in the action.\nThe general issue was pleaded and also notice given that defendant would offer to show that the heifer \u201c came to her death by reason of wounds inflicted by some kind of an instrument that would produce a wound like a three-pronged pitchfork, and that said wounds were received while upon the premises or in the stable of plaintiff.\u201d Such notice does not propose proof of justification. It does not give notice of proof that this plaintiff inflicted such wounds. JSTo issue of law or fact can be formed on a mere notice. It can be tested on the trial when evidence is offered under it. If it presents no defense, then the evidence will be rejected. Burgwin v. Babcock, 11 Ill. 20. It is not necessary to assume any evidence was offered under it. Under the general issue all the facts relating to the making of the charge may be offered in mitigation. That is, what was said by the defendant at the time to the witnesses by whom the slanderous charges were proven, may be shown, to show the charge was not reckless and wanton. Thomas v. Dunaway, 30 Ill. 373. The want of express malice may be shown in mitigation. Storey v. Wallace, 60 Ill. 51. The fact that when the defendant went after the heifer she was sick, laid down, etc., may be so shown.\nThe court can, by instructions, limit such evidence, to its proper purpose. In view of the insufficiency of the notice, we have a right to assume, evidence in the record that would otherwise have been objectionable, was so offered.\nThe slanderous charges being proved, some damages are implied in law; Baker v. Young, 44 Ill. 42; therefore, the plaintiff was entitled to a verdict for something.\nThe verdict for the defendant is probably explainable on the impression created by the examination of the witnesses by the court, by whom the slanderous charges were proven.\nThat impression is that if the defendant expressed an opinion, the plaintiff was guilty of killing his heifer with a pitchfork, then he was not liable, although he had made the direct charge averred in the declaration. The court may not have intended to create such an impression, but we think it was created, and accounts for this verdict. Uo law is cited supporting the view that slanderous words are not actionable because they .are the results of an opinion formed from certain facts. The reasons given to support the charge would only tend to deepen the impression in the mind of the hearer and thereby do greater injury to the person so charged if it was false. It was not for the witness, in any event, to give his understanding that the defendant was expressing an opinion if the defendant spoke the words charged. It was evident the witness understood defendant was making a direct charge against the plaintiff. The proof shows he, unqualifiedly, did make such charge. A witness may be asked as to the impression the words made on him, as to whether the person speaking the words intended to impute crime (McKee v. Ingalls, 4 Scam. 32), or get his opinion of the sense in which the slanderous words were understood as to imputing crime, etc. Nelson v. Borchenius, 52 Ill. 236.\nThe words herein must be construed in the sense which hearers of common understanding would ascribe to them and it was the defendant\u2019s duty to avoid the use of language which was slanderous in the minds of reasonable men who might hear him (Kelson case, supra), unless he could prove the truth of his charge.\nThe fifth instruction given for the defendant was somewhat in the line of such examination.\nThe jury was instructed: \u201c In this case, though the jury may believe from the evidence that the defendant did speak the slanderous words charged in the declaration, still, if the jury further .believe from the evidence and the facts and circumstances proved on the trial, that the defendant did not intend to impute, and the hearers did not understand him to impute to the plaintiff, the offense which the words might under other circumstances, naturally import, then the jury should find the defendant not guilty.\u201d\nThere is no evidence in this record to sustain or justify this instruction. The jury would probably consider it was based on the examination of the witnesses made by the court, part of which runs as follows : \u201c Q. You did not understand that he had seen this man run a pitchfork into his animal, or anything of that kind ? A. Ko, sir. Q. He simply claimed that he gathered that from the circumstances? A. Yes, sir. Q. And you took it as an opinion of his ? A. Yes, sir. Q. That is what I have been trying to get at, whether he gave it out that this man run a pitchfork into his heifer, or whether he gave it to you as his opinion from the circumstances % A. Yes, sir.\u201d This examination was not proper and no instruction could legally be based on it. The judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Sample" } ], "attorneys": [ "Clemens & \"VVardee, attorneys for appellant.", "Young & Baker, attorneys for appellee." ], "corrections": "", "head_matter": "Emanuel Tottleben v. Boss Blankenship.\n1. Slander\u2014Actionable Words.\u2014To charge a person with maliciously killing a domestic animal, is actionable.\n2. Same\u2014When All the Words Uttered Do Not Amount to a Charge of Crime.\u2014In an action for slander it may be shown that all the words uttered at the time did not charge any crime, and that, so considered, no crime was intended to be charged.\n3. Same\u2014The Sense in Which the Words Are Understood.\u2014A witness in an action for slander, may be asked as to the impressions the words made upon him, as to whether the person speaking the words intended to impute a crime, or he may state his opinion of the sense in which the slanderous words were understood as to imputing crime.\n4. Pleading\u2014Notice with the General Issue in Slander.\u2014A notice which presents no defense is insufficient, and evidence offered under it should be rejected.\n5. Evidence\u2014Mitigation Under the General Issue.\u2014Under the general issue in slander, all the facts relating to the making of the charge may be offered in mitigation of damages.\n6. Mitigation of Damages\u2014 Want of Express Malice.\u2014The want of express malice may be shown in mitigation of damages in actions of slander.\n7. Notice\u2014When Implied.\u2014To willfully charge a person with the commission of a crime implies malice in law, that can not be rebutted, though all the words of the conversation may be shown to determine whether such implication arises, if the meaning of the words is doubtful.\n8. Damages\u2014Whenlmplied.\u2014When the slanderous words are proved, some damages are implied in law, and so the plaintiff, upon making proof of the charge, is entitled to a verdict for something.\n9. Trials\u2014Examination of Witnesses by the Court.\u2014Where the court by examination of witnesses in an action of slander, creates an impression that if the defendant expressed an opinion, etc., he would not be liable, although he had made the direct charge, and the jury finds for the defendant, the verdict will be set aside.\n10. Slanderous Words\u2014How to be Construed.\u2014Slanderous words must be construed in the sense which the hearers of common understanding would ascribe to them.\nAction for Slander.\u2014Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge, presiding. Declaration in case; plea, not guilty, with notice, etc.; trial by jury; verdict for defendant; appeal by plaintiff. Submitted at the August term, 1894.\nReversed and remanded.\nOpinion filed March 23, 1895.\nClemens & \"VVardee, attorneys for appellant.\nYoung & Baker, attorneys for appellee." }, "file_name": "0047-01", "first_page_order": 43, "last_page_order": 47 }