Teague v. Williams

COLLIER, C. J. It was formerly held, that unless the plaintiff, in an action of slander, proved the identical words laid in the declaration, he failed to support his action; but this strictness, it is said, has been long since relaxed, and it is now sufficient, if the plaintiff proves, that the defendant spoke words substantially the same as those stated in the declaration. [Kennedy v. Lowry, 1 Binn. Rep. 393; Miller v. Miller, 8 Johns. Rep. 74; Grubbs v. Kyzer, 2 McC. Rep. 305; Bell v. Bugg, 4 Munf. Rep. 260.] But, although it be allowed for the plaintiff to prove words which import the same thing in substance as those, which the defendant is charged with having uttered, yet the witnesses must state, (either positively, or as near as memory will allow,) the words they heard used, and cannot be allowed to state the impression produced upon their minds, by the whole of the conversation. [Harrison v. Bevington, 8 C. & P. Rep. 708; Ney v. Otis, 8 Mass. Rep. 122; 2 Stark. Ev. 846 ; Fox v. Vanderbeck, 5 Cow. Rep. 513; Olmstead v. Miller, 1 Wend. Rep. 506; 4 Phil. Ev. C. & H.’s ed. 235-6; Id. note, 450; Williams and Wife v. Bryant and Wife, 4 Ala. Rep. 44; Armitage v. Danster, 4 Doug. Rep. 291.] [848] Thus we see that a witness is not permitted to make out the plaintiff’s case by proving words merely equivalent, in his estimation, to those he heard the defendant use ; but he must state the language that was employed, according to the best of his recollection, so that it may appear to the Court whether the cause of action alledged is supported. This much it was proper to require of the witness, and as the statute of limitations was interposed, the onus lay upon the plaintiff of proving that the words charged, or some of them, that were actionable, were uttered within twelve months preceding the commencement of the suit. But the witness should not have been required, as a condition of the admission of his evidence, to state the precise time within that period, when the words were spoken. This requisition, we understand from the bill of exceptions, was made in the present case. It would have been competent for the defendant to have made the examination, Upon this point, as searching and minute as could have been dqsired 5 but if the witness was prepared to express the confident belief, that the facts alledged, occurred within the time to which the bar of the statute dates back, his testimony should have been admitted. 2. The transposition of the names of the parties to the suit, as a witness in which, the plaintiff was charged with having sworn falsely, is not such a variance as should have excluded the evidence. The charge alledged to have been made, was, substantially, that the plaintiff was examined as a witness in a case between those parties, which had been pending before the justice of the peace, and that, on such examination, he had sworn falsely. This allegation is substantially proved,although the relative position of the parties towards each other, is different from the statement in the declaration. In Wiley v. Campbell, 5 Monr. Rep. 560, it was held, that an allegation, that the defendant charged the plaintiff with having sworn a lie, in a suit of B. and wife v. Campbell’s heirs, will be supported by proof that the charge was made in reference to a deposition taken to support a cross bill,filed by the husband of one of the heirs, against B. and wife, and the defendant. This is a pertinent authority upon the- point before us. 3. In Russell v. Macquister, 1 Camp. Rep. 49, evidence of actionable words, spoken after the time of those laid in the [849] declaration, was objected to, on the ground that if such words were taken into consideration by the jury, the defendant might be made to pay a double compensation for the same injury; since another action might be brought for the words last spoken. And the distinction was taken between that case and words not actionable. But Lord Ellenborough overruled the objection, observing, that though such a distinction had once prevailed, it was not founded in principle; and that, although no evidence can be given of any special damage, not laid in the declaration, yet any words, or any acts of the denfendant, are admissible, to show quo animo, he spoke the words which are the subject of the action. But in such case, it is said, that the judge should direct the jury to give damages only for the words which are the subject of the action. [3 Step. N. P. 2577.] But Defries v. Davis, 7 Car. & P. Rep. 112, it was held, that evidence of the repetition of the same words, or of other words which show an animus, not by separate slander, but by repetition of the slander complained of, or by other words, which show the same train of thought, was admissible; but it is not allowable to show any thing that would be the subject of another action. Any thing that shows a continuance of rankling malice, on the part of the defendant, may be received. In Wallace v. Mease, 3 Binney’s Rep. 550, it was remarked, by Chief Justice Tilghman, that there was no discernable difference between words actionable, and not actionable, or between words spoken before, or after suit brought. “ The subsequent words,” says he, “are received as evidence, only to show the mind and intent of the defendant, when he spoke the words which are'the cause of action; and the damages are, or ought to be given, solely on account of the words laid in the declaration. This should be explained to the jury, by the judge who tried the cause; and if they do their duty, they will give no damages for any words, but those in the declaration.” Again, “I confess there is danger, that in fact the jury may not confine themselves to their true line of duty, and for that and other reasons I have given before, if I considered myself at liberty, I would reject all evidence of this nature. But, holding myself bound by former decisions, I must say, that the evidence in this case was admitted.” So where words [850] are actionable, it is proper to admit evidence of the same words being spoken after the action brought, to aggravate damages. [Kean v. McLaughlin, 1 Serg. & R. Rep. 469.] Words spoken more than two years before suit brought, may be given in evidence, to show malice. [Mapes v. Weeks, 4 Wend. Rep. 659.] To show quo animo the words charged were spoken, evidence of the defendant’s conversations, relating to the original defamation, had subsequent to the commencement of the suit, are admissible. [Kennedy v. Gifford, 19 Wend. Rep. 296.] It very clearly appears, from these citations, that it was competent for the plaintiff to adduce evidence to show, that the defendant spoke of the plaintiff, some of the words charged in the declaration, more than twelve months before the commencement of this suit; whether these words were actionable previous to the bar of the statute,is wholly immaterial. In estimating the damages, the jury should not have considered them, but they should have been regarded for no other purpose than to show, quo animo the slanderous words proved to have been spoken within the twelve months, were uttered. This testimony being rejected, we think the Court should not have permitted the defendant to introduce proof to show its truth,for the purpose of repelling the inference of malice; and how such evidence could be presented to the jury, without admitting that offered by the plaintiff, we. are at a loss to perceive. So the Court should have permitted the plaintiff to give evidence of slanderous words, such as are charged in the declaration, having been uttered by the defendant since the institution of the suit, for the purpose of showing quo animo the words charged were spoken. The law was thus ruled in Defries v. Davis, and Wallace v. Mease, cited above. It results from what has been said, that the Circuit Court erred in the adjudication of several of the jioints reserved by the bill of exceptions. This is too obvious to require a more particular application of the questions considered, to the facts in the record; and without adding more, the judgment is reversed and the cause remanded.