Holmes v. Holmes

Citations

• 64 Ill. 294

Syllabus

<p>1. Measure op damages in actions for slander—and lurrein, of exemplary doomages. In an action for verbal slander it is erroneous for tbe court to instruct tbe jury “that malicious slander is an infamous offense, for which the law allows exemplary damages to be given.” Such a mode of aggravating vindictive damages, by investing the act with which the defendant is charged and for which the suit is brought, with a degree of turpitude and enormity which the law neither attaches nor recognizes as belonging to it, is not to be countenanced.</p> <p>2. Same—former decision. There was no point’ involved in the case of McClurkin v. Ewing, 42 Ill. 283, calling for an elementary definition of verbal slander, and that given by the court is not supported by the • authorities, and the language used- in the opinion which characterized the offense as infamous, must be regarded as used through inadvertence, and as constituting a mere obiter dictum.</p> <p>3. In assessing the damages in such an action, any circumstances of aggravation or in mitigation of the offense should be taken into consideration.</p> <p>4. Nor should the damages be assessed merely according to the defendant’s ability to pay; for whether the payment of the amount due to the plaintiff as compensation for the injury will or will not be convenient to the defendant, does not at all affect the question as to the extent of the ■injury done, which is the only question to be determined. The jury are to inquire not what the defendant can pay, but what the plaintiff ought to receive.</p> <p>5. Instructions should not; assume facts to be proven, which are in dispute.</p>