Sowers v. . Sowers

Smith, C. J., after stating the case. These are the several exceptions and the statement of facts upon which they rest, brought up for review by the defendant’s appeal, and we proceed'to consider them in their successive order. 1. There is no justification set up for the utterance of the slanderous words, and the matters alleged in the answer are only admissible in evidence in mitigation of damages, and hence may be proved und.er the third issue for that purpose. *306 2. A fair and reasonable construction of the defendant’s language in reference to an unmarried woman does, we think, import and impute personal bodily prostitution to the plaintiff, without the aid of collateral and explanatory facts, not averred in the complaint, to ascertain and point its meaning. It implies an illicit sexual intercourse, not followed by the usual consequences of pregnancy. If the plaintiff did not give birth to a child, she missed a good chance of having it. This is in substance the charge, and presupposes, not a lost opportunity for sexual intercourse, but the fact itself unattended by the natural result of childbearing. It was then unnecessary to inquire of the witnesses their understanding of the meaning of the words, as their actionable'character was to be declared by the court. If they were ambiguous and defamatory only by reason of other associated facts, and these had been averred in the complaint, with the further allegation that they were understood by the hearers as imputing criminal intimacy with a man, then it would have been competent, but not otherwise, to ascertain in what sense they were understood by the hearers. Briggs v. Byrd, 11 Ired., 353; Sasser v. Rouse, 13 Ired., 142. 3. A general report and belief of the loose morals and prostitution of the plaintiff, may be given in evidence to mitigate damages. Nelson v. Evans, 1 Dev., 9; and so, evidence of her general bad character was admissible for the same purposes. Goodbread v. Ledbetter, 1 Dev. & Bat., 12; Smith v. Smith, 8 Ired., 29; 2 Greenl. Evi., (Damages), § 275 Testimony of this kind the judge offered to hear, but it was not offered, the defendant declining to modify his question. 4. The remaining exception is to so much of the charge as left the jury free, if they found that the defendant spoke the words maliciously, to find punitory or exemplary damages. *307 The appellant insists that since the slander of innocent women, maliciously and wantonly uttered, has .been made indictable by statute, (acts 1879, ch. 150) and may be •'punished by a public prosecution, punitory damages merely ought not to be assessed in a. private action for compensation for the personal injury suffered. There would seem to be much force in the argument, if the question were an open one in this state. The right to recover damages purely punitive, and not in compensation for individual injury, is combatted with much earnestness, and upon a critical examination of adjudged cases, by Mr. Greenleaf in an elaborate note to section 253 of the second volume of his valuable work on Evidence ; but the decisions in this state have been uniform, that in slander, and for acts of personal violence in which malice enters as an ingredient, exemplary damages may be awarded, and the defendant in case of assaults remain liable also to indictment. The statute only places slander in this regard upon the footing of a malicious assault. We are content to refer to some of the cases. Duncan v. Stalcup, 1 Dev. & Bat., 440; Causee v. Anders, 4 Dev. & Bat., 246; Wylie v. Smitherman,8 Ired., 236; Gilreath v. Allen, 10 Ired., 67; Bradley v. Morris, Busb., 395 ; Pendleton v. Davis, 1 Jones, 98. And even after conviction and punishment by fine under an indictment for an assault, it would not defeat the right of the injured party to recover exemplary damages, or as it is sometimes called, “ smart money,” and could only be made available in reduction of damages. Smühwiclc v. Ward, 7 Jones, 64. We cannot, for any suggested inconveniences, or upon the idea of inflicting a double punishment for one and the same act, disregard this uniform line of decisions. There is no error. No error. Affirmed.