Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1872-03-19
SANDER suit-stewart VS. Smith.


to the court attendants, and especially
the Lancaster people, thatsa slander
suit enlisted more attention than any
other case that has been tried the
present session Of the Circuit Court.
The court room was crowded with
eager listeners of both sexes during
Fridays day and night sessions oc-
cuped in the trial la this case snit
was brought by George and Eliza
S ewart against Anton Sehmitt-alI
Of Lancaster-for SANDER setting the
damages thereby at So 900 The
attorneys employed were, for the
laintiff~. w. E Carter nd George
| Ciementson, and for the defendant,
Geo G. Hazelton and w. p. Dewey.
The jury heard the case and came
near deciding both ways by assessing
the damages at $50 90. Thus the
plaintiff saved her character and the
4 PENDANT bis pocket We cannot
afford the space the testimony in this
case would occupy, and as far as we
are concerned, dismiss the suit by
publishing Judge Mills charge to the
jury which gives an outline Of the
testimony and much Of the law APP
plicable to cases of this kind:
CHARGE TO THE JURY:
George and Eliza Sie,Oart rs. Anton Sehmia.
The plaintiff, Eliza Stewart, charges the
defendant with publishing a libel, charging
her with having stolen pque dress pattern
from the defendant, also that he verbally,
aud falsely published concerning her, SANDER
Gus words imputng to her the same crime.
II appears that the pattern was sold or taken
from the defendants store on the lst day of
July, 1871
The difference between libel and Islander,
generally stated, is that the former is written,
the latter in verbal. There are other differ
ences not necessary to allude 10 in the present
action.
The writing that the plaintiff in the action
contend is libellous, is in the form of an
account which sets forth that the pique dress
pattern was taken by Mrs. Stewart from the
defendants store without the knowledge or
consent OF the defendant or his clerk. This
might be true and yet Mrs. Stewart be guilty
OF no crime, nor the least dishonesty
Whether the defendant did thereby int nd TO
charge the plaintiff with having stolen the
dress pattern, and whether persons on reading
It's contents could so consider it, you will de-
termine from all the evidence. It is not
libelous, unless such inference can be fairly
drawn from il, and from the surrounding
evidences.
There are two other counts in the complaint
charging oral slanderous words, viz that
"she," meaning Eliza Stewart, "stole a pink
nil he IA.
of the third count. These words must be
precisely proven as avered. evidence that the
defendant said Mrs. Stewart took this pattern
from his store, without the knowledge or con-
sent of the defendant or his clerk does not
prove the speaking of such words, nor does
the allegation in the defendants answer that
the defamatory matters set forth in the plain
tltf's complaint are true, establish the fact
that the defendant spoke the words charged in
the complaint before the action was COM
menced.) The second count sets forth the
words 81 can prove it," as an answer to some
question proposed TO the defendant by the
plaintiff, George Stewart. The answer not
IN terms alleging charge of larceny, to make
the count actlohable, think it should have
reclted the precise question asked by Mr..
Stewart. The words charged in tue last count
in the complaint clearly impart a crime o
Mrs. Stewart, and so with the written account,
If you should find from the surrounding facts
and circumstances as well as from the language
OF the account, that the defendant intended to
Impute the crime of larceny 10 the plaintiff,
and that persons aware of such circum-
stances would construe the language.
However, TO enable the plaintiff TO recover,
II must appt ar that the slanderous or lbelous
v ords were spoken in the hearing of some
third person, or in case of the writing, that
some thIrG person knew OF ITS contents before
the defendant handed il TO her. He is not
responsible for publication made by her
after ITS delivery which he wished TO avoid,
or did not anticipate intend. Had the
proof been that the defendant, Mrs. Stewart
could not read, il would lead the inference
that The defendant intended she should show
the paper to some one that could read ill.,
Written or spoken words imputIng the crime
OF larceny 10 another, in case such words are
published, enltle such person TO a verdict for
some charge, unless a defence is made out by
the person proven to have written or spoken
aud published such words.
There may be complete or partial defence.
Proof that the words actually spoken were
true, that the plaintiff was actually guilty of
the crime charged, is complete defence and
is called in law justification. Ii from the
evlde &c in this case, you believe that Mrs.
Stewart was guilty OF the offence with respect
she cannot recover.
A partial defence goes to mitigate the
damages. II may appear that the defendant
had reasons more or less convincing, leading
hiin to believe that Mrs. Stewart actually stole
the dress pattern. The evidence shows either
that Mrs. Stewart took the goods without
authority, or that the clerk, Mr.. Thomas,
sold the pattern to her. You must Judge of
| the conduct Of the defendant from the Informal
| ton he received from Mr.. Thomas. If he
did nothing more than prudent and consid-
crate man should do under the circumstances,
actual malice would disappear, and the plain
| tiff would be entitled to nominal damage only.
If he showed too ready a confidence in the
statements of Mr.. Thomas, or Was rash or
ndiscreet, such imperfections in conduct you
may consider in your verdict, but the law does
not censure them as il does actual malice
Actual malice maoitests itself in the industry
with which the slanderer circulates charge
he knows to be false in matter that often does
not concern him ia the envy which would
drag down a pure character to the level of his
own. But when one man charges another
with larceny on evidence that he has good
reason to believe is sufficient, and in the
| pursuit OF his own rights if it afterwards
appears he is mistaken, this is constructive
malice, or malice in law, which is never
punished with exemplary damages. In a
case like the present you may take into
consideration the conduct Of both parties. }
Il The alia0at,on YnaIa hv ha def IN hia