272 P. 703

JAMES HEWETT and NELLIE HEWETT, Respondents, v. MRS. H. F. SAMUELS, Appellant.

No. 5077.Supreme Court of Idaho.
November 3, 1928.

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APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. W.F. McNaughton, Judge.

Action for slander. Judgment modified and affirmed in reduced amount.

E.W. Wheelan, for Appellant.

Where the complaint in an action for slander does not furnish information as to the time, place or party to whom the alleged slanderous statements are made, the defendant is entitled to a bill of particulars giving such information. (Irwin v. Taubman, 30 S.D. 502, Ann. Cas. 1915C, 1263, 139 N.W. 115; 31 Cyc. 565; 21 R. C. L. 480, 481; Columbia Accident Assn. v. Rockey, 93 Va. 678, 25 S.E. 1009.)

A bill of particulars when served and filed becomes part of the complaint. (21 R. C. L. 481; Chapman v. Bent, 6 Cal. Unrep. 740, 65 P. 959.)

Any part of a cause of action omitted from a bill of particulars served and filed is abandoned or waived. (McKinnie v. Lane, 230 Ill. 544, 120 Am. St. 338, 82 N.E. 878.)

Exemplary damages cannot be recovered without proof of actual damages. (17 C. J. 974; Barnard v. Cohen, 165 Wis. 417, 162 N.W. 480.)

Exemplary damages can only be recovered in case of proof of actual malice. (37 C. J. 125; Philadelphia etc. R. Co. v. Quigley, 62 U.S. (21 How.) 202, 16 L. ed. 73; Astruc v.

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Star Co., 182 Fed. 705; reversed on other grounds, 193 Fed. 631, 113 C.C.A. 499, 40 L.R.A., N.S., 79; Broughton v. McGrew, 39 Fed. 672, 5 L.R.A. 406; Davis v. Hearst, 160 Cal. 143, 116 P. 530; Hearne v. DeYoung, 132 Cal. 357, 64 Pac. 576; Longsworth v. Curson, 56 Cal.App. 489, 206 P. 779 Wright v. Baldwin, 47 Cal.App. 147, 190 P. 377; Republican Pub. Co. v. Conroy, 5 Colo. App. 262, 38 P. 423; Driessel v. Urkart, 147 Wis. 154, 132 N.W. 894, 36 L, R. A., N.S., 146 Reed v. Keith, 99 Wis. 672, 75 N.W. 392; Unifried v. Libert, 20 Idaho 708, 119 P. 885.)

Myrvin Davis, for Respondents.

In permitting the witness Brown to testify there was no abuse of discretion. (See Bennett Co. v. Twin Falls Land Water Co., 14 Idaho 5, 93 P. 789; Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; Watkins v. Lord, 31 Idaho 352, 171 P. 1133; McCarthy v. Mt. Tecarte Land Water Co., 110 Cal. 687, 43 P. 391; Silva v. Bair, 141 Cal. 599, 75 Pac. 162.)

In Miller v. Mullan, supra, the court says: “Without deciding in this case as to whether or not an action for tort falls within the provisions of sec. 4209, R. C., we are content to rest our decision sustaining the action of the trial court on the proposition that this provision of the statute is not mandatory but directory. In our opinion the matter rests in the sound discretion of the trial court as to whether or not he will inflict the extreme penalty of the act on the guilty party and exclude all evidence on the claim.”

In McCarthy v. Mt. Tecarte Land Water Co., supra, the court say: “When a bill of particulars is objectionable, and defendant intends to object to the introduction of evidence, he must, before the trial, move for an order to exclude it.”

In Silva v. Bair, supra, the court say: “Where a bill of particulars was not served within the five days, but it was served over a month before the trial and no objection was made to it on the ground that it was too general or defective,

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it was not an abuse of discretion to not to exclude evidence under the bill.”

Court will not interfere with the verdict on ground of excessive damages, unless it is satisfied that the verdict is the result of gross error, prejudices, perverseness or corruption. (17 R. C. L. 444.)

A verdict will not be set aside merely because it is large, or because in excess of what the court thinks proper. (17 R. C. L. 444.)

The amount of damages rests in the sound discretion of the jury. (25 Cyc. 530.)

According to the great weight of authority, exemplary, punitive or vindictive damages may be awarded in actions for libel and slander where it appears that the defendant acted maliciously in making the publication. (17 R. C. L. 441.)

If expressed malice on the part of defendant is shown, exemplary or punitive damages are proper. (25 Cyc. 536.)

In most jurisdictions, exemplary, punitive or vindictive damages are recoverable in actions for defamation of character. (25 Cyc. 536.)


Respondent recovered a judgment against appellant, a resident in the school district in which respondent was teaching, for undifferentiated actual and exemplary damages for slander. Several slanderous statements were alleged, but the only one concerning which evidence was offered involved immoral acts with men.

The complaint not stating the persons to whom or the times when the alleged slanderous statements were made, upon request, a bill of particulars was ordered. The first bill contained the name of one C.B. Brown. The appellant contending that the bill was insufficient, a second was filed from which the name of Brown was omitted, inadvertently according to respondent. On December 20, 1926, an additional bill containing the name of Brown was filed. The trial was had beginning January 6, 1927. No prejudice was shown to have arisen because the name of Brown was omitted from the second bill of particulars and the trial

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court did not err in admitting, over the objection of appellant, the testimony of Brown. (Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660.)

Appellant urges that the instruction on exemplary damages was incorrect for three reasons:

First, it allowed the jury to find exemplary damages without having first determined that respondent was entitled to actual damages.

Second, it told the jury that respondent was entitled to exemplary damages as a matter of right.

Third, there was no evidence justifying an instruction on exemplary damages and the instruction did not sufficiently require a finding of malice.

The instruction told the jury that “where one is guilty of making or circulating, by word of mouth, false and slanderous statements of another, if such statements were made maliciously or wantonly, in addition to the real or compensatory damages suffered on account thereof, the jury is at liberty to asses also exemplary damages.” (Italics ours.) By the use of the words “in addition” and “also,” it is clear that the jury were instructed that exemplary damages could be found only if actual damages were first found.

Appellant cites Davis v. Hearst, 160 Cal. 143, 116 P. 530, where use of the word “entitled” with respect to exemplary damages is condemned. Clearly there is a difference between telling the jury that appellant was “entitled” to exemplary damages, and telling them they were “at liberty” to assess exemplary damages under certain circumstances. The California case indicated that it was a matter for the jury to determine. We believe that the instruction in the case at bar sufficiently so states.

The instruction used the words “maliciously” and “wantonly.”Unfried v. Libert, 20 Idaho 708, 729, 119 P. 885, 891, quoting with approval from 13 Cyc. 111, required “wilful fraud, malice or gross negligence.” (See, also, 17 C. J. 983.) The words “maliciously” and “wantonly”

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in the instructions are sufficiently synonymous with those i Unfried v. Libert, supra, to remove the instructions from the field of error.

The evidence is conflicting as to the statements made by appellant, but we cannot say that the evidence is not sufficient to justify the verdict.

The jury returned a verdict for $4,750. Respondent testified that she did not again apply for the school where she had been teaching because she thought that the directors would not wish to re-employ her, and furthermore she had to be in Lewiston to take a teachers’ examination. The immoral acts charged, if true, constituted a crime. We do not feel that the evidence showed sufficient actual damages or that the jury should have assessed such punitive damages in addition thereto as to warrant a verdict in the amount found. The judgment is reduced to $2,000 and if respondent files with this court within thirty days her written consent to such reduction, judgment in that amount will be affirmed. Otherwise a new trial will be ordered.

No costs awarded.

Wm. E. Lee, C.J., and Hartson, D.J., concur.

BUDGE and TAYLOR, JJ., Dissenting.

We cannot concur in the affirmance by reduction of a verdict concededly by over fifty per cent, the result of passion and prejudice.

Petition for rehearing denied.

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