Gandy v. Humphries

B. W. WALKEB, J. It is extremely difficult, if not impossible, to settle by exact definition what declarations are to be considered as forming pai’ts of the res gestee. It has been said, in general terms, that the idea of the res gestee presupposes a main fact, and includes only such circumstances, facts and declarations as grow out of the principal transaction, are contemporaneous with it, and serve to illustrate its character. — Lund v. Tyngsborough, 9 Cushing, 36; Carter v. Buchanan, 3 Kelly, 517 ; 1 Greenl. Ev. § 108. The imperfection of this definition has, however, been frequently admitted ; and, as is the case with most legal generalites, many difficulties have been found in its application to the various cases which have arisen in practice. When it is said that declarations, to be admissible as parts of the res gestee, must be contemporaneous with the principal transaction, it is not meant that they shall be exactly coincident in point of time with the main fact. If they appear to spring out of the transaction — if they sei’ve to elucidate it, and are made so shortly after the happening of the main fact, as to stand in the relation of unpremeditated result to it, the idea of deliberate design in making them being fairly precluded by the surrounding circumstances, then they may be regarded as contemporaneous. — Mitchem v. State, 11 Geo. 625 ; Commonwealth v. McBride, 3 Cushing, 181; Handy v. Johnson, 5 Maryland, 450 ; Hart v. Powell, 18 Geo. 639 ; Lund v. Tyngsborough, 9 Cushing, 36; Carter v. Buchanan, 3 Kelly, 517 ; Bawson v. Haigh, 2 Bing. 99 ; Traun v. Keiffor, 31 Ala. 137 ; 1 Greenl. Ev. § 108, and notes. The declaration of the plaintiff, the admission of which was one of the matters excepted to on the trial, answers all of these conditions, and wc think there was no error in permitting it to go to the jury. [625] 2. The general rule is, that a witness is to be considered throughout the trial as the witness.of the party who first caused him to be summoned, sworn and examined. "While we will not say that there may not be cases, in which the court might, in its discretion, permit a party to impeach one of his own witnesses, after the opposite party had recalled and examined him as a witness to make out his case; we think it clear, that the refusal of the court to allow this to be done, is not a matter which can be the subject of revision here. — 1 Greenl. Ev. § 447; Burke v. Miller, 7 Cushing, 547; 2 Phill. Ev. (C. & Id’s notes,) ed. 1843, p. 781. '3. The bill of exceptions does not inform us of the purpose for which the defendant offered the evidence showing the manner in which the plaintiff took the bond out of the defendant’s possession. The only plea put in by the defendant appears to have been “ not guilty." But under the Code, (§ 2226,) in actions of slander, the truth of the words spoken may be given in evidence under the general issue, in mitigation of damages. If the evidence referred to was offered as tending to establish the truth of the words spoken, it is obvious that the court did not err in permitting the plaintiff to prove that, in taking the bond, he acted under the advice of counsel. And if the action of the court below on this point could not be sustained on any other hypothesis, we would be bound to presume that the evidence of Goldsmith was introduced to prove the truth of the charge made against the plaintiff. If, however, as is more probable, the taking of the paper was introduced to show the immediate provocation, under the excitement of which the words were spoken, we still think there was no error in permitting the plaintiff to prove the advice of counsel under which he acted. Such testimony tended to explain the true character of the act which the defendant relied on as the provocation which led to the speaking of the slanderous words. The more wanton the provocation, the greater the mitigation which the slander would receive from it. How far the provocation was wanton, was, then, a material consideration in the assessment of the damages. The testimony [626] of Goldsmith, standing alone, was well calculated to place the plaintiff before the jury in the attitude of a willful wrong-doer. The evidence showing the advice which the plaintiff's counsel had given him, tended to relieve him from this position, and, by explaining the motives under which he acted, served to place the alleged provocation before the jury in its true proportions. — Hill v. Ward, 13 Ala. 312; Chandler v. McPherson, 11 Ala. 916. Supposing that the taking of the bond was offered to show the provocation which induced the slander, its admissibility in evidence would depend upon the question, whether that transaction was the immediate or proximate cause of the speaking of the words. — Moore v. Clay, 24 Ala. 237; 1 Amer. Lead. Cases, 205-6. Into that inquiry we need not, and do not enter; for, whether the evidence of that transaction was legal or illegal, the testimony which the plaintiff* introduced in explanation of it was properly admitted. — Blakey v. Blakey, 33 Ala. 621; Nelson v. Iverson, 24 Ala. 9. 4. The court charged the jury, that in estimating the damages, “ they might look to the fact, that the plaintiff* was a minister of the gospel, if such he was.” There was no averment in the complaint, that the plaintiff was a minister of the gospel; nor was there either averment or proof of auy special damage sustained by him in Ms character of minister. The charge, therefore, gives rise to the single question, whether the fact that the plaintiff is a minister of the gospel, is an element to be considered in enhancement of the damages to which he is entitled. If that was a circumstance proper to be considered in estimating the damages, so also would he the fact, that the plaintiff was a physician, merchant, mechanic, lawyer, school-teacher, or belonged to any other particular profession or class of citizens. Any defamatory words, that necessarily or naturally tend to injure a man in his profession, office, or business, are actionable. But, if a party claims damages done to him in any special character, as attorney, physician, minister, tradesman, or the like, he must sue in that character. If follows, that where the suit is to recover merely for damages to the plaintiff as [627] an individual, he cannot recover for damages due him in his profession. — 1 Am. L. C. 99; 2 Starkie on Slander, p. 1, &c.; Wadsworth v. Bently, 22d Eng. L. & E. 176. In such a suit, the profession or calling of the plaintiff should not be considered by the jury, unless, indeed, we assume that the measure of damages is, to some extent, dependent upon the plaintiff’s pursuit. This assumption would be unjust, and wrong in principle. Whether a slander suit be regarded as having for its object compensation for an injury done to the plantiff’s character, atonement for wounded feelings, or the punishment of the wrongdoer, there is no propriety in recognizing the profession of the plaintiff as a matter to be considered by the jury in aggravation of the damages. Neither the value of character, nor the delicacy of feeling, nor the enormity of the slander, can be graduated according to the pursuit of the slandered individual. We find some American authorities which hold, that the plaintiff’s ‘rank in life,’disconnected from his character, may be shown to enhance the damages. — Larned v. Buffington, 3 Mass. R. 552 ; McAlmont v. McLelland, 14 S. & R. 359; Parke v. Blackiston, 3 Harrington, 373-5; 1 Am. L. C. 210; 2 Greenl. Ev. §§ 89, 269. If this be a sound rule, then, it might be true that, iuasmuch as one’s profession does contribute to fix his rank in life, the jury should be permitted to look to it in estimating the damages. But the rule adverted to is hostile to the genius of our institutions, and we are not willing to follow it. We are not able to discover any sound principle, on which the plaintiff’s high or humble rank in society, dissociated from his character, can be held a proper matter for consideration in determining the amount of damages he should recover. It is often the case that the greatest worth of character is found in the humblest ranks of life, and that to persons in those ranks a good character is» more valuable, and slander more injurious, than to those who are above them in social position. It is equally true, that persons destitute of the' qualities which make character valuable are found in what is denominated the highest rank in life, and in all the professions, the sacred ministry not excepted. [628] The part of the charge which was excepted to, in effect asserts, that damages which, if the plaintiff were not a minister, he should not recover, may be allowed him be.eause he is a minister ; and we think that the court erred in giving it. Judgment reversed, and cause remanded.