game, for its better preservation; and such regulation and control, according to Blackstone, belong to the police power of the government. The ownership

being in the people of the state,-the repository of the sovereign authority,-and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the state, may withhold or grant to individuals the right to hunt or kill game, or qualify or restrict it, as, in the opinion of its members, will best subserve the public welfare. Stated in other language, to hunt or kill game is a boon or privilege granted, either expressly or impliedly, by the sovereign authority; not a right inhering in the individual; and consequently nothing is taken away from the individual when he is denied the privilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state, and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state. But, in any view, the question of individual enjoyment is one of public policy, and not of private rights." What is here qnoted applies with equal appropriateness to laws having for their object the preservation of fish in the waters of the state, and such application is made in said opinion, by way of argument, in the following language: "So far as we are aware, it has never been judicially denied that the government, under its police powers, may make regulations for the preservation of game and fish, restricting their taking and molestation to certain seasons of the year, although laws to this effect, it is believed, have been in force in many of the older states since the organization of the federal government. On the contrary, the constitutional right to enact such laws has been expressly affirmed, in regard to fish;" citing several of the cases to which reference has already been made, in which the constitutionality of such acts is affirmed, and adding, "Upon principle, the right is clear." Testing the case, then, in the light of both reason and authority, we are of the opinion that the statute under consideration was intended to and does apply to the lake or pond in question, and, as so applied, it is constitutional and valid. In reaching a contrary conclusion the appellate court erred, and its judgment will therefore be reversed, and the judgment of the circuit court will be affirmed.

RANSON V. MCCURLEY.1 (Supreme Court of Illinois. May 11, 1892.) SLANDER-VARIANCE-WAIVER-INSTRUCTIONSEVIDENCE-HARMLESS ERROR.

1. Under Rev. St. Ill. c. 126, § 1, which makes a false charge of fornication constitute slander, it is slander to charge an unmarried woman with being pregnant.

2. The objection that there is a variance between the words proved and the words alleged

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

|

is waived where the defendant makes no objection to the evidence, does not move for a nonsuit, and fails to ask any instruction in the nature

of a demurrer to the evidence.

3. It is proper to instruct the jury that, if they find defendant guilty, they may consider evidence, if any, of the repetition of the slander in determining the motive of the defendant, and in fixing the amount of the damages.

4. Where the slander alleged is charging the plaintiff, an unmarried woman, with committing fornication, an instruction that by pleading the general issue only the defendant admits that the plaintiff is chaste and virtuous, is erroneous.

5. But the giving of such instruction does not constitute reversible error where no evidence is introduced to overcome the presumption that the plaintiff is of good character.

6. An instruction that "the substance of the

alleged slanderous words are all that the plain

tiff must prove," is erroneous and misleading.

7. The error of giving such instruction is cured where other instructions announce the correct rule, requiring the plaintiff to prove some one or more of the sets of words charged in the declaration in order to recover.

8. A letter of the defendant's, showing that he was a discarded suitor of plaintiff, is admissible in evidence as tending to show a motive for the slander.

SCHOLFIELD and CRAIG, JJ., dissenting. 38 Ill. App. 323, affirmed.

Error to appellate court, third district. Action by Mary E. McCurley against Samuel E. Ranson, for slander. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant brings erAffirmed.

ror.

error.

SHOPE, J. This is an action for slander, in which the plaintiff recovered $3,000 damages. On appeal to the appellate court the judgment was affirmed, and the defendant below prosecutes this writ of

error.

If

The first point made is that there is material variance between the allegations of the declarations and proofs. We are of opinion that it is too late to avail of error in that regard, if it exists. The declaration in varying language set out the alleged slander, with proper inducement and innuendoes, imputing that the plaintiff, an unmarried woman, was pregnant, and guilty of fornication. To charge an unmarried woman with being pregnant is necessarily to impute fornication. words are used, uttered, or published falsely, which in their ordinary or common acceptation amount to a charge of fornication, or if the person speaking intends that the hearers shall understand, and they do understand, fornication to be imputed, the words are slanderous and actionable. Section 1, c. 126, Rev. St.; Barnes v. Hamon, 71 Ill. 609: Schmisseur v. Kreilich, 92 ill. 347. It is not contended that the evidence does not show the uttering and publication of words charging that the plaintiff was pregnant, and others that per se charge her with being guilty of fornication, but it is insisted that the words laid in the declaration, or enough of them to amount to such charge, are not proved. That there was, therefore, a variance between the allegations

and proof. It is well settled that to authorize a recovery in an action for slander the words laid in the declaration, or enough of them to charge the particular offense alleged to have been imputed, must be proved substantially as charged. Evidence of the speaking of equivalent words, although having the same import and meaning, is not admissible. And words spoken interrogatively are not admissible to sustain an allegation of words spoken affirmatively. Sanford v. Gaddis, 15 Ill. 228; Wilborn v. Odell, 29 Ill. 457; Schmisseur v. Kreilich, supra. These rules are highly technical, and were, as said in the Wilborn Case, supra, no doubt introduced because of the disfavor with which actions for slander were regarded by the courts, and to discourage that species of litigation. They are, however, rules of evidence merely, and, like other rules of evidence, may be dispensed with or waived by the parties by express stipulation, or by conduct inconsistent with the right to insist upon an enforcement of the rule. In the case at bar, the defendant sat by, and permitted all of the evidence tending to show the uttering and publishing of the slanderous words to go to the jury without objection. The trial court was not, by objection to the evidence, or an instruction in the nature of a demurrer to it, called upon to pass in any way upon its competency or admissibility. If the objection was that the evidence was inadmissible, it would manifestly be too late to object on appeal. The rules governing the admission of evidence are familiar, and require that objection be interposed when it is offered, otherwise error cannot be predicated on its admission. It was early held in this state, and has been since uniformly followed, that improper evidence should be excepted to on the trial; otherwise it will be presumed to have been received by consent. Snyder v. Laframboise, Breese, 343; Transportation Co. v. Joesting, 89 Ill. 152; Schill v. Reisdorf, 88 Ill. 411. The objection, however, is, as before stated, that there is a variance between the allegations and the proof. By the instructions for plaintiff the jury was told that, if they found from the evidence that the defendant had uttered and published the slanderous words charged in the declaration, etc., as therein alleged, etc., they should find the de. fendant guilty. By the fifth, given at the instance of the defendant, they were instructed that to maintain her cuse plaintiff "must prove the words substantially as charged;" "that proof of equivalent words or expressions will not suffice; nor is it sufficient to prove that the words were spoken in an interrogative form," nor "that defendant said he had heard the alleged slanderous matter," etc. The eighth instruction, given for defendant, sets forth the various words in which the slander is charged in the declaration, and instructs the jury that it is incumbent on the plaintiff to show by a preponderance of the evidence "that the defendant did use substantially one or more of said set of words, as charged in the declaration," etc. And the second of defendant's series is to like effect. Instead, therefore, of moving to exclude the evidence, or moving for a

nonsuit, or asking an instruction in the nature of a demurrer to the evidence, as be might have done on a failure of proof, the court, at his instance, submitted to the jury, to be found from the evidence as a fact, whether the averments of the declaration were proved. They found adversely to defendant, and the approval of that finding by the trial and the appellate courts is conclusive of the fact. That a party cannot complain of an error committed at his own instance is too familiar to require the citation of authorities. The defendant, having required no ruling by the court upon the evidence, and invited its submission to the jury, should not be permitted to complain of the error, if error there was, in submitting the case, but should be held to have waived his right to insist upon the strict rule of law now sought to be invoked. Especially should this be so where, as in this state, the parties may amend their pleading in form or substance, upon such terms as may be just and reasonable, and thereby the expense of another trial be saved to the litigants, and the transaction of the business of the courts facilitated.

In Jones v. Fales, 4 Mass. 245, PARSONS, C. J., after holding that, if the defendant had objected to the evidence at the trial, the objection must have prevailed, says: "But I am strongly inclined to the opinion that objection to the evidence, as not comporting with the declaration, ought not generally to be admitted, unless objection be made at the trial, and the point reserved. A contrary practice would introduce much mischief. See, also, State v. Burnett, 81 Mo. 120, where it was held that "it was too late to raise either objection or exception, in regard to improper evidence, for the first time on the motion for a new trial." To the same effect is State v. Peak, 85 Mo. 191. Nichols v. Hayes, 13 Conn. 155, was an action for slander, and it was objected that there was a variance between the proof and the declaration, and it was held that, the evidence not having been objected to on the trial, it came too late on the motion for a new trial. See, also, Hayden v. Nott, 9 Conn. 367. In the case at bar, had attention of court or counsel been called to the fact that it was to be urged anywhere that there was not sufficient evidence of the publication of the words alleged, the question could have been put beyond controversy by a slight amendment; and that, too, without surprise to the defendant. The witnesses, in some instances, as is usual, in detailing the statements of the defendant, used the verb in the past tense, instead of the present, as charged in the declaration. By changing the form of the verb in the declaration, or going further, and inserting, with proper innuendoes, the words proved, which we held in Elam v. Badger, 23 Ill. 498, to per se amount to a charge of fornication, the allegata et probata would have agreed, and the trial have proceeded without loss of time or additional expense, and with all the rights of the parties protected that could be saved on a retrial of the cause. We are not unmindful of the holding in Sanford v. Gaddis, followed, with

some criticism, in Wilborn v. Odell, supra, that a difference between the tense of the verb laid and that proved will constitute a material variance. There may be cases in which the rule will still work a hardship, but in the main the mischief seemingly apprehended in the Wilborn Case will in practice be readily averted by the liberal amendments now allowed. Under

the authority of these cases, the evidence alluded to, had it been objected to, would probably have been excluded, unless, upon the witness' attention being called to the form of expression, which was in no instance done, he corrected it, or the decla. ration was amended to conform to the evidence. Counsel for defendant, no doubt, purposely, and wisely for the interest of their clients, declined to interpose objection, preferring to take their chances with the jury, rather than to suggest amendments which, under the proof, would have left no possible way of escape. It is sufficient, however, that no question of law was preserved in respect of the matter being considered, and, as already stated, the facts are conclusively settled by the judgment of the appellate court.

It was not error for the court to instruct the jury that, if they found the defendant guilty as alleged, they might take into consideration evidence, if any, of the repetition of the slander, in determining the motive of the defendant, and in fixing the damages to be awarded. As giving additional or independent right of recovery, the speaking of words not alleged in the declaration are not provable; but proof of them is admissible if they repeat the charge of the same crime or offense as tending to show the motive which induced the first defamation. 2 Starkie, Sland. & L. 56. Its repetition may show deliberate malice in the utterance of the original slander, and it is then proper to be considered in aggravation of damages. Thomas v. Fischer, 71 Ill. 576; Baker v. Young, 44 Ill. 42; Stowell v. Beagle, 79 Ill. 525.

Objection is also made to the first and ninth instructions for plaintiff. The jury were thereby told, in effect, that by pleading the general issue only the defendant admits that the plaintiff is a chaste and virtuous girl. This is manifestly inaccurate. The effect may be, as said in Dunaway's Case, 30 Ill. 373, that pleading the general issue only is to "virtually admit" that the plaintiff is innocent of the particular charge, but it by no means admits affirmatively, as a matter of law, the general good character of the plaintiff. Under that plea the defendant may disprove any fact essential to the plaintiff's right of recovery not amounting to a justification of the truth of the imputation, and may show in mitigation of damagesFirst, any fact that tends to disprove malice; and, second, the general bad character of the plaintiff before and at the time of the alleged publication of the slanderous matter. Starkie, Sland. & L. 453; Starkie, Ev 740; Townsh. Sland. & L. 406; Young v. Bennett, 4 Scam. 43; Sheahan v. Collins, 20 Ill. 325. But, while we think the instructions should have been refused, the giving of them was not, in this case,

prejudicial error. The presumption that the plaintiff was of good character obtained, and must, notwithstanding the plea, prevail until it is shown to be bad. No attempt was made in any way on the trial to impugn the character of the plain. tiff. The jury were, therefore, in determining every question submitted, justified in believing her to be pure and chaste, and of general good character. The duty of the jury in this regard, or the probability that they would indulge the presumption in her favor, would not be heightened or increased by any supposed admission of the defendant.

The first paragraph of the fifth instruction for plaintiff announces an incorrect proposition of law. It is as follows: "The court instructs the jury *** that in this case the substance of the alleged slanderous words are all that the plaintiff must prove." Without other criticism, it is clear that, if it was intended to say that it was only necessary to prove the substance of the charge, as would be likely to be understood from this proposition standing alone, it incorrectly states the law. We have before seen that proof of equivalent words, or words of the same import and meaning with those charged to have been spoken, though varying only in the tense of the verb employed, will not suffice. The rule is not that the substance of the words alleged must be proved, but that the words alleged in the declaration, or enough of them to amount to a charge of the particular offense alleged to have been imputed, must be substantially proved. Although the words proved are equivalent to the words charged, or have the same meaning, or amount to a charge of precisely the same offense, yet, not being the same words, or substantially the same words, the action cannot be maintained. What is meant is, not that the substance of the words alleged will suffice, but that substantial proof of the words only is required, as distinguished from a literal proof of the words alleged in the declaration. The text-books and cases are replete with illustrations of what is or is not a material variance under this rule, and we need not extend this opinion by giving them. We are of opinion, however, that, while the first paragraph of the instruction, taken by itself, was erroneous, and liable to mislead, when it is taken in connection with the residue of the same instruction, and with others of the series, especially the 2d, 5th, and 8th, given for defendant, before mentioned, it could have had no prejudicial effect upon the jury. By the same instruction, and immediately following the paragraph quoted, the correct rule is announced. By this instruction, as well as those of defendant, referred to, the plaintiff is required to prove some one or more of the sets of words charged in the declaration before she could recover. We think it impossible that the jury could have been misled to the prejudice of the defendant. There was therefore no prejudicial error.

It is also insisted the court erred in admitting a letter in evidence, purporting to have been written by the defendant to the plaintiff. Sufficient foundation was laid

by proof of defendant's handwriting to admit the letter in evidence. We think it was entirely competent, as tending to show a motive for the utterance of the slanderous words. It tended to show that defendant had been a suitor of the plaintiff's, and had been discarded, shortly before the alleged publication of the slander. It is not pointed out, nor can we perceive, how the admission of this letter could have operated unjustly or to the prejudice of the defendant. If the uttering of the slanderous words was not induced by the feeling engendered in consequence of the matters referred to in the letter, then there was no motive other than that willful disregard of the rights of others, and the welfare of society, which is even more dangerous and reprehensible than actual malice. Finding no substantial error in the record of which plaintiff in error can complain, the judgment is affirmed.

SCHOLFIELD and CRAIG, JJ., dissent.

LAKE ERIE & W. R. Co. v. WILLS.1 (Supreme Court of Illinois. May 11, 1892.) NEGLIGENCE ACTION FOR DAMAGES - INSTRUCTIONS-EVIDENCE-PLEADING-AIDER BY VER

DICT.

1. In an action for personal injuries, it is not reversible error to charge that, in assessing damages, the jury may take into consideration the disability occasioned by the accident, and any impairment of plaintiff's general health, which will affect his future ability to attend to his ordinary business, where, in other instructions, the jury are told that in estimating the plaintiff's damages, present and prospective, they should give only such damages as are shown by the evidence, and that, to enable plaintiff to recover, his right to do so must be shown by a preponderance of the evidence, since, taking all the instructions together, they do not assume as a fact that "an impairment of the plaintiff's general health" was shown by the evidence.

2. A declaration containing four counts, and having the ad damnum clause at the end of the third count, and not elsewhere, is sufficient, after verdict, where the first three counts state a good cause of action.

3. In an action against a railroad company for personal injuries alleged to have been caused by the company's negligence, the want of direct proof that the defendant was operating the railroad, and that the men who caused the accident were in its service, is no ground for reversal, when no objection on that ground is made before the verdict is returned, and the defendant's possession of the road is assumed in its own instructions.

39 Ill. App. 649, affirmed.

Appeal from appellate court, third district.

Action by John B. Wills against the Lake Erie & Western Railroad Company to recover damages for injuries to person and property. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

A. E. De Mange, (W. E. Hackedorn, of counsel,) for appellant. Thomas F. Tipton, for appellee.

SHOPE, J. This was an action for personal injury to the person and property

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

of appellee, resulting from the collision of a hand car, propelled by the servants of appellant on its railroad track, with the wagon of appellee, at a street crossing in the village of Saybrook. A trial resulted in a verdict for plaintiff, upon which judgment was rendered, and which was, on appeal, affirmed by the appellate court.

All questions of fact are, by the judgment of the circuit and appellate courts, settled affirmatively in plaintiff's favor, and are not the subject of review in this court. This includes the extent of plaintiff's injury and right of recovery. Railroad Co. v. Holland, 122 III. 461, 13 N. E. Rep. 145; Joliet v. Weston, 123 Ill. 642, 14 N. E. Rep. 665, and cases cited. It is insisted, however, that the court erred in giving the ninth instruction for the plaintiff, as follows: "The court further instructs the jury that, if they find the defendant guilty under the testimony and instruction of the court, then, in assessing the plaintiff's damages, the jury may take into consideration, not only the bodily disability occasioned by the accident, if any is proved, but also an impairment of the plaintiff's general health, which is shown by the evidence, and which the jury believe from the evidence will affect or impair his future ability to attend to his ordinary business the same as if the injury complained of had not occurred." It is urged the court hereby assumed as a fact that "an impairment of the plaintiff's general health" was shown by the evidence, and that fact, being assumed, took the question of whether there was permanent impairment from the jury. It is stated by counsel for appellee that the word "an," as shown in the instruction as originally given, was "any," so that it read, as given, "also any impairment of plaintiff's general health which is shown by the evidence," etc., and that the error occurred in copying the instruction into the transcript. A suggestion of diminution of the record is made, and leave asked, in this court, to file an amended record. We have not seen proper to determine appellee's right to the leave asked, for the reason that we are inclined to concur with the appellate court that, while the instruction in the form in which it appears in the record cannot be approved, when it is considered in connection with the context, and other instructions given, it could have done no injury. The objectionable clause is preceded by instruction to the jury that, if they find for the plaintiff in assessing his damages, they might take into consideration the "bodily disability occasioned by the accident, if any is proved;" and immediately following the objectionable clause, and coupled to it by the conjunction "and,' the statement that the jury are to take into consideration any impairment of plaintiff's general health “which they believe from the evidence will affect or impair his future ability" to attend to business. By the tenth instruction given for plaintiff, the jury was told that in estimating the plaintiff's damages, present and prospective, they should give only such damages as was shown by the evi