
    Heeney v. Kilbane.
    
      Slander suit— What facts must be pleaded— Words spoken presumed ■ to be in English — Plea of guilty in former criminal case as evidence in civil action — How introduced — Testimony of magistrate erroneous, when.
    
    1. When the plaintiff in a slander suit desires to broaden and intensify the meaning of the words spoken, by connecting them with extrinsic facts, such facts must be pleaded in the petition; hut in the absence of a motion to make more specific and certain, a general averment as to such extrinsic facts will be sufficient.
    2. In an action for slander, the words spoken are presumed to have been spoken in the English language, unless the contrary is made to appear; and if spoken in a foreign tongue there can be no recovery, unless the words are set out in the tongue in which they were spoken, followed by a translation into English,
    3. When a person is arrested before a magistrate upon an affidavit charging him with a crime, and he enters a plea of guilty to the charge, and thereafter a civil action is brought against him to recover damages for the same wrong, to entitle the plaintiff to introduce the plea of guilty as evidence in the trial of the civil action, the affidavit or a copy thereof, should be first introduced ; then it should be shown that the affidavit was read to the defendant, or that he was correctly informed of its contents, and that he entered a plea of guilty to the charge. To permit the magistrate to testify that the defendant was arrested and brought before him, and that he entered a plea of guilty, without showing the charge to which he so plead, is error.
    4. If neither the affidavit nor a copy thereof can be produced, secondary evidence of its contents may be received.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    Mary Kilbane, defendant in error, filed her petition in the court of common pleas of Cuyahoga county against Patrick Heeney, plaintiff in error, as follows:
    
      “On or about the twenty-fifth day of December, 1893, at the city of Cleveland in said county, in a certain discourse which said defendant then and there had of and concerning said plaintiff, and in the presence and hearing of divers good people as well as in the presence of the plaintiff, the defendant falsely, unlawfully, wickedly and maliciously spoke and published of and concerning said plaintiff, the false, scandalous and malicious words following, viz.:
    “You,” meaning said plaintiff, “are the Swede’s whore.” Meaning thereby, that said plaintiff was and had been a whore for a certain Swede, referred to. “I, myself, pulled him off from you.” Meaning thereby, that he, said defendant, had himself detected and interrupted her in her adultery.
    In said conversation the defendant repeated the slanderous words aforesaid many times, to the end that they might be clearly understood, remembered and believed by the large assemblage of persons then and there assembled. And they were spoken, as aforesaid, at the time and place above given, without any provocation on the part of said plaintiff; said defendant there and then well knowing that his declarations aforesaid were false and untrue; but they were spoken with the design and purpose of injuring plaintiff in her good name and reputation, and of vexing and scandalizing her,and of blasting* her character, and that she has been damaged thereby, in the sum of ten thousand dollars, for which sum she asks a judgment against defendant.”
    The answer was a general denial.
    Mary Kilbane is a relative of the wife of plaintiff in error and he assisted her in reaching Cleveland from Ireland. She resided in his family until she became the wife of Michael Kilbane, and after the marriage there were frequent and violent quarrels between Mary and her husband, and the plaintiff in error. At the date mentioned in the petition plaintiff in error, after a fierce quarrel with Mary and her husband, ejected them from his saloon, and thereupon she threw stones at him and at his saloon, and he threw stones at her, and during this violent quarrel which drew together a large concourse of people of that neighborhood, the words charged in the petition are alleged to have been spoken by him of and concerning her, in a loud, angry and boisterous manner, in the presence of the people so assembled, as well as in the presence of the plaintiff below. The police appeared upon the scene and arrested him as well as her, and upon a hearing both were discharged. It was claimed by her counsel upon the trial that she caused his arrest a few days therafter before J. C. Poe, a justice of the peace, for verbal slander, upon an affidavit sworn out by her, and that he plead guilty to the charge, and the intimation is that the verbal slander charged in the affidavit is the same as the words alleged to have been spoken as averred in the petition.
    The jury returned a verdict in her favor for $1,200. A motion for a new trial was overruled and judgment entered on the verdict, to all of which he, by his counsel, excepted. The circuit court affirmed the judgment, and thereupon he filed his petition in error in this court, seeking to reverse the judgments below:
    
      Foran <& MoTigue and J. P. Dawley, for plaintiff in error.
    We claim that every fact necessary to prove a cause of action or defense must be alleged and set forth in the petition, the same now as before the adoption of the code. 1 W. L. M., 102; 2 Dec. Re., 24; 3 Gaz., 66; 2 D., 52.
    The testimony was clearly at variance with the allegations in the' petition. The office of a pleading is to inform the court and the parties of the facts in issue: The court that it may declare the law; the parties, that they may know what to meet by their proofs. Hill v. Mendenhall, 21 Wall., 455; section 5060 Revised Statutes.
    Although it is held that a petition will be construed according to the ordinary meaning of language, that meaning must conform to the proof. 10 Ohio St., 621; 27 Ohio St., 159.
    In all cases where the alleged defamatory words, whether spoken, written or otherwise expressed,' do not clearly in themselves convey the meaning the plaintiff would assign to them, or where they are ambiguous or equivocal and require explanation by reference to some outside or extrinsic matter to show that they are actionable, it must be expressly stated that such matter existed and that the defamation related thereto. Allegations of this character are what are called the inducement or statement of extrinsic matter. Newell on Slander and Libel, second edition, page 600, Ghitty’s Pleading, 14th American edition, 400; Newell v. Howe, 31 Minn., 235; 17 N. W. Rep., 283; Bloss Toby, 2 Pick. (Mass.), 320; Newell on Slander and Libel, p. 320; Stewart v. Wilson, 23 Minn., 449; Merritt v. Dearth, 48 Vt., 65.
    The extraneous facts necessary to be proven to give the alleged slanderous words a direct and positive meaning, must be averred in a traversable form, with a proper colloquium or inducement. Newell on Slander and Libel, section 21, p. 607; 147 Mass., 438; 18 N. E. Rep., 214; 144 Mass., 38; Greenleaf on Evidence, 15th edition, Yol. 2, section 413.
    In the petition, the alleged slanderous words are given in the English language.
    It has been held in numerous cases, that in actions for defamation, if the words alleged and claimed to have been spoken, upon which the action is predicated, are in a foreign language, the identical words must be set out in the language in which they were spoken or published, and a translation thereof, into the English language be given. Warmouth v. Kramer, 3 Wend. (N. Y.), 394; Pelzer v. Benish, 67 Wis., 291; 30 N. W. Rep., 366; 12 Ind., 453; 61 Wis., 626; 21 N. W. Rep., 799; Zenobio v. Axtell, 6 T. R., 162; 3 M. & S., 116; Newell on Slander and Libel, pp. 277 and 637.
    It is a well established rule that it is error sufficient to reverse a judgment, for the trial court to suffer counsel, against objection, to state facts pertinent to the issue, which facts are not in evidence, or to comment upon facts calculated to prejudice, which have no bearing, whatever, upon the issues, and evidence of which would have been ruled out, or to assume arguendo, such facts to be in the case, when they are not. 44 Wis., 282; 64 N. H., 27; 66 Mo., 588; 126 Ill., 150; 75 Ala., 466; 66 Me., 564; Vol. 2, Ency. Pl. and Prac., 727.
    We maintain that the law of the state of Ohio, and of all the states of the Union, substantially is, that exemplary damages can only be awarded where express malice is proven, and that express malice cannot be inferred from the fact, alone, that the words spoken are false and injurious. Wright’s Reports, 101 and 121; 2 Gaz., 33; 5W. L. M., 184; 2 Dec. Re., 735; 4 Ohio St., 283; 3 W. L. M., 100; 2 Dec. Re., 440; D., 487; 32 Wis., 327; 17 N. W. Rep., 672; Seaton v. Cordrap, Wright’s Reports, 101; Stevens v. Handley, Wright’s Reports, 122 ; 17 N. N. Rep., 672.
    * Kerruish, Chapman & Kerrwish, for defendant in error.
    ' The words charged in petition are actionable per se under the laws of Ohio. For the speaking of words actionable per se, exemplary damages may be given, although actual malice is not proved. 13 Vol., Amer. & Eng. Encyl. of Law, 1 edition, p. 434, note 2; Wood v. Hilbish, 23 Mo. App., 389.
    There can be no question but that such words so spoken of defendant in error entitle her to exemplary damages. Hayner v. Cowden, 21 Ohio St., 292.
    The violence of the defendant’s language, the nature of the imputation conveyed, and the fact that the defamation was deliberate and malicious will, of course, aggravate damages. 13 Vol., Amer. & Eng. Encyl. of Law, 1 ed., p. 438.
   Burket, J.

Upon the trial the plaintiff below when a witness upon the stand, after testifying to the speaking of the words by him, and the manner in which they were spoken, testified as follows :

“Q. Well, was there a Swede? A. Yes, he was boarding at his house. Q. ■ What .is his name? A. His name is Charlie Masters. Q. Did you know him ? A. Y es. Q. Was he in the neighborhood there? A. He was boarding at Mr. Heeney’s house. Q. You may state whether you had anything to do with that Swede? A. No, sir ; I did never have nothing- to do with any one. Q. You may state whether any of the persons that' were there that day when he talked this language, knew that the Swede had been at his house? A. Yes.” To each of these questions the defendant below objected. The objections were all overruled and exceptions taken, and the admission of this evidence under the pleadings constitutes the first assignment of error.

It is urged by plaintiff in error that this testimony gave a slanderous import to the words, which was derived from extrinsic facts, and that if she desired the benefit of such facts she should have pleaded them so as to inform the defendant below what he would be expected to meet on the trial.

When the plaintiff in a slander suit desires to broaden and intensify the meaning of the words spoken by connecting them with extrinsic facts known to the speaker and to those who heard the words spoken, such extrinsic facts should be averred in the petition; and if the petition in this case had been as counsel for. plaintiff in error assume it in the argument to be, the evidence in question would clearly be incompetent. The petition on this point is as follows: “You, meaning said plaintiff, are the Swede’s whore. Meaning thereby, that said plaintiff was and had been a whore for a certain Swede, referred to. ’ ’

Extrinsic evidence that there was a certain Swede who was referred to by defendant below in what he said, and that she was his whore is here averred. In the absence of a motion to make this averment in the petition more specific and certain, the evidence in question was properly received. The evidence so received and objected to tended to prove this averment in the petition, and if he desired to have' the extrinsic facts more fully set out, he should have made a motion to that effect.

In the next place it is claimed by counsel for plaintiff in error that the evidence clearly shows that the words spoken by defendant below were spoken in the Irish language, and that as they are set up in the petition in the English language only, there can be no recovery.

After the plaintiff below and her witnesses had testified to the speaking of the words charged in the petition, without saying anything as to the language in which the words were spoken, the defendant below introduced some evidence to the effect that they were scolding and using the Irish language and one thing another; that they were talking Irish; that they talked in Irish and English ; that they mixed up the English with the Irish ; but none of those witnesses could tell what was said in either language.

Upon this state of the testimony the court charged the jury upon that subject as follows:

‘ ‘ The words charged are charged to have been spoken in the English language. So that, to entitle the plaintiff to recover in this action it must appear that these words were spoken in the English tongue. If spoken in a foreign tongue, there can be no recovery in the petition in this case, for it is not claimed they were spoken In a foreign language, and no translation is given. It is a case in which it is charged that these words were spoken in the English language, and to entitle the plaintiff to recover, the proof must satisfy you that they were spoken in the English tongue.”

“ By Mr. Kerruish: We ask the court to say to the jury that there being- no presumption that the words were spoken in any foreign tongue, there being no statement to the effect that they were spoken in a foreign tongue, the burden of establishing the fact that they were spoken in a foreign tongue is upon the defendant.

By the Court :

(as it further charged.)

I think there is no presumption at all that the words were spoken in a foreign tongue. It is a question of evidence. The presumption, I think, is that they were spoken in the English tongue; and in the absence of proof to the contrary, the jury would be justified in assuming that the words were spoken in the English tongue, if spoken at all.”

There was no error in this part of the charge. The words are set out in the petition in the English language. The testimony of the plaintiff below and her witnesses as to the speaking of the' words, and as to the quarreling between the parties on that occasion, was in English without any suggestion as to any other language. This is an English speaking nation, and our courts and schools use that language, and the natural presumption is that English was used until the contrary is made to appear. Whether the contrary was made to appear is a question of fact for the jury, to be determined from the evidence, and in the absence of evidence to the contrary, the presumption would be that the words were spoken in English. No witness states that the words were spoken in Irish, and there was no testimony tending to prove that they were so spoken. As some of the witnesses say that they were scolding in Irish, and mixed up the English and Irish, the jury might guess that the words, if spoken at all, were spoken in Irish, but there was no proof to the effect that the words were spoken in the Irish language.

Another assignment of error is as to the admission of certain testimony. The defendant below testified in his own behalf on the trial, and on cross-examination he was asked whether he was not arrested before Squire Poe for the transactions of that day, and he said he was. He was then asked whether he was not arrested for speaking the words charged in the petition, and whether he did not come in and plead guilty and say that he spoke those words and pay his 'fine and costs, to which he answered, “No, sir.” He further testified on cross-examination that they were both arrested in police court for the disturbance and were discharged, and he claimed that when he was brought before Squire Poe he was not informed and did not know that he was arrested for speak, ing the words charged in the petition, and that he did not plead guilty to speaking those words.

Thereupon plaintiff below called T. J. Rose, who had acted as clerk to Squire Poe, and Mr. Rose brought Mr. Poe’s criminal docket into court, and after identifying the same, counsel said to him: “Turn to page 244 and read that whole thing from beginning to end.” Objection was madé, and no answer was given. And there was nothing developed showing what was in the docket at page 244.

Thereupon Squire Poe was called as a witness by the plaintiff below and his attention called to page 214 of the docket, and he was asked to refresh his recollection and state whether he saw the warrant in that case, and he said he did; but there was no evidence offered to show what ease he looked at to refresh his memory, or what case appeared on page 214. He was then asked the following question: “Q. You may state whether this'man, the defendant in that ease, was made aware of what he was charged with. ” Counsel for defendant below objected to this question. The objection was overruled and exceptions taken. The examination then proceeded as follows:

“Q. By Mr. Kerruish: With your indistinct recollection refreshed, as it may be by this record, you may state whether there was made known to this defendant, and whether he was apprised of what he was charged with ? A. He was. Q. You may state whether he said he was guilty of using these words. Refresh your recollection by what is at the bottom of that docket. A. I think so. I think a waiver was written on the back of the envelope. Q. Explain what that waiver is? A. It was something after this form: T hereby waive trial by jury and enter plea of guilty to the charge herein.’ Objected to. (Answer continued.) That’s always the entry where they plead guilty and sign the waiver. To which answer defendant objected, and moved the court to take the same from the consideration of the jury which motion was sustained. Q. You may state whether it was made known to him what he was charged with and whether he said he was guilty afterward. To which question defendant objected, which objection was overruled, to which ruling of the court defendant then and there excepted. A. My recollection of it is we had some talk, and Heeney wanted to get out of it the cheapest way possible, and signified his willingness to sign a waiver after its being explained to him, and pleaded guilty and paid the costs. Q. What did he say in regard to being guilty or not guilty ? A. I don’t remember that he said anything more than what he signed. Q. Did this waiver say‘I am guilty ? ’ A. Yes. Q. And he paid the costs thereupon, as is stated there? A. I think I told him I could not figure the costs there, and he paid them at the office.”

There is no evidence tending- to prove that the charge against Mr. Heeney before Squire Poe was for speaking the words charged in the petition. Mr. Poe says that Mr. Heeney plead guilty, but fails to state to what charge the plea was entered. The affidavit was not offered in evidence, neither was the entry thereof on the docket, nor a copy thereof; and yet from the evidence introduced over the objection of the defendant below, the jury would take it that he plead guilty to a charge for speaking the words set out in the petition.

The best evidence as to what the charge against Mr. Heeney before Squire Poe was, is the affidavit, and that should have been produced, and if it could not be found then secondary evidence of its contents could be offered, and then it should be shown that the affidavit was read to him, or that he was informed of the charge, and that, having knowledge of the charge, he said he was guilty, or words to that effect.

The evidence shows that he pleaded guilty to some charge before Squire Poe and signed a waiver and paid the costs, but the nature of the charge is not disclosed by any witness except himself, and he says it was not for speaking those words, but for something growing out of that day’s transactions — disturbance, as he calls it.

The admission of this evidence as to pleading guilty to a charge before Squire Poe, without showing that the charge was for speaking those words, was prejudicial error, as the jury would naturally infer that he plead guilty to a charge for the speaking of the words in question.

The record does not disclose the action taken by the court as to misconduct of counsel for plaintiff below, and therefore it must be presumed that the court discharged its full duty. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77.

There is no error in the charge of the court as to damages, or exemplary damages.

For the error in the admission of testimony as to the plea of guilty as above indicated, the judgment of the circuit court, and of the court of common pleas will be reversed, and the cause remanded for a new trial.

Judgment reversed.  