Tolleson v. Posey

By the Court. Jenkins, J., delivering the opinion. Error is assigned, in this case, upon the ruling of the Court, admitting the evidence of Fanny Jones, offered by the defendant. This was one of the witnesses by whom plaintiff proved the speaking of the slanderous words. The defendant subsequently examined her to prove that plaintiff had attempted to bribe her as a witness in the case. She proved [375] the attempt, but avers that she did not yield to the temptation, but on the contrary, that she, as plaintiff’s witness, had sworn to the truth, the whole truth, and nothing but the truth. Objection being made, the Court admitted the evidence. Our judgment is, that the evidence should have been excluded. It does not go to impeach her previous testimony, .but to sustain it. It was not competent to mitigate damages for two reasons: 1. The conduct of the plaintiff, which it discloses, as indicating want of integrity on his part, was subsequent to the alleged defamation, and his character as it was before, and at the time of the speaking of the words, and not as affected by subsequent acts, is the true subject of inquiry. 2. The good character set up by plaintiff cannot be assailed by proof of particular acts inconsistent therewith. The defendant, on this point, is confined to general bad character. Richardson vs. Roberts, 23 Ga. R., 215. Error is further assigned against the rejection, by the Court, of the tax-books, to show the quality and value of property admitted by the defendant to be his. This evidence was offered to aid the jury in fixing the measure of damages. Juries are authorized in such cases to give smart money, or, in other words, to make the verdict somewhat positive. What a poor man would feel as smart money, one of very large means would not. We think, in assessing damages for an ascertained wrong, it is admissible for the jury to look to the defendant’s circumstances; if so, then it is proper that they should have evidence of the extent of his wealth, and there can be no more reliable evidence to show a given amount of wealth than his own verified statement given as the measure of liability for taxation. It is complained that the Court erred in rejecting certain bills of indictment preferred by defendant against plaintiff, and ignored by the grand jury, when offered in evidence by plaintiff. This was competent evidence, not to enhance the damages, but to show malice. It has often been ruled, that for this purpose, acts done, or words spoken, other than those which are the gravamen of the suit pending, are competent, though it has been said that the Court should charge the jury not to increase the damages [376] by reason of such other words spoken, or acts done. These are only evidence of the quo animo. Rustell vs. McQuister, 1 Camp. 49, n. McLeod vs. Wakely, 3 Car. & P., 311. Adkins vs. Williams, 23 Ga. R., 222. It is lastly assigned as error, that the Court bharged the jury, at defendant’s request, that they had the right to scrutinize the plaintiff’s whole conduct, as disclosed by Fanny Jones, in her depositions taken by defendant for the purpose of determining to what amount of damages the plaintiff was entitled. Having already ruled that this evidence was improperly admitted, we have no hesitation in holding that this charge of the Court was erroneous. According to the rules of law governing this adtion, an illegal or immoral act, done by the plaintiff, is no sufficient cause for mitigation of damages for any injury previously done him by the defendant. The verdict of the jury affirms that the injury complained of was done to the plaintiff by the defendant. They do not sustain his plea of hot guilty, and it may be that the very small damages they found were assessed under this and other erroneous rulings of the Court. We think,' therefore, the judgment of the Court below, refusing a new trial, should be reversed, and the cause re-tried. Let the judgment be reversed.