Flint v. Clark

Huntingtox, J. Several exceptions have been taken to . the proceedings in the court below, which are now to be examined. It is said, the testimony of Nathaniel Flint and the writ in the case of the plaintiff against Amanda Hall, should have been rejected. The ground of the objection to the testimony of Flint, is not stated in the motion; and the only reason there assigned for the rejection of the writ, is, that it was not proved that the defendant had ever seen it, or that he knew its contents. It has been claimed, however, in this court, that the whole of this evidence was inadmissible, because there is no averment nor colloquium in the plaintiff’s declaration regarding the writ, and without them the proof could not be received. It is not necessary to controvert the position, that where the words spoken, which are the foundation of the action, are ambiguous and equivocal, and require explanation, by reference to some extrinsic matter, to make them actionable, it must be predicated, not only that such matter existed, but also, that the words were spoken of and concerning that matter. In the present case, the testimony of Flint was received, as we are informed by the judge who tried the cause, (and the motion does not state nor intimate that it was offered for any other purpose than that for which he admitted it) not in support of the action, as proof of the speaking of the words charged in this declaration, but merely to shew the malice of the defendant in speaking the words so charged, and which, it is to be presumed, were proved by other evidence. As it was, in effect, a repetition of the same slander set forth in the declaration, (the words in the suit against Amanda Hall, being, as the motion states, of the same tenor and effect with those charged against the defendant,) it was admissible to shew malice. We suppose this point was decided by this court, in Mix v. Woodward, 12 Con. Rep. 262. The writ was introduced for the purpose of shewing what were the slanderous words specified in it, it being expressly [367] referred to, by the defendant, in his statement to Flint, and also in the conversation between himself and the plaintiff,, her mother and sister, (which conversation, it is to be observed, was received as evidence without objection,) in the course of which and as part of it, the defendant said, “ that the plaintiff was guilty of all that was in that writ; that he knew it, and the plaintiff knew itthat the plaintiff was guilty of those charges,” referring to the charges in the writ. The only reason urged at the trial, in support of the objection to the reception of the writ as evidence, was, that it was not proved that the defendant had ever seen it, or knew its contents. The facts appearing on the motion, are sufficient to shew that the defendant knew the contents of the writ. But had the evidence as to the knowledge of the defendant, been less conclusive than it was, we cannot re-examine this point. Whether the judge at the circuit, in a case where a question of fact is to be decided by the court, should reserve for the advice of this court, the question respecting the sufficiency of the evidence offered to prove the fact in dispute, is a matter entirely within his discretion. Sharp v. Lockwood, 12 Conn. Rep. 155. In this case, it has not been reserved. The ground of objection taken, for the first time, in this court, if it be tenable, we cannot regard. It was not made in the court below. If it had been, the plaintiff might have amended her declaration, so as to have let in the evidence, or have waived the introduction of it altogether. To allow the defendant to avail himself of a point not made nor decided at the trial, would pervert all the beneficial principles regulating new trials, and contravene the rule which was adopted to maintain those principles. Regula Generalis, 6 Conn. Rep. 327. Lyon v. Summers, 7 Conn. Rep. 399. Russel v. Stocking, 8 Conn. Rep. 236. Nichols v. Alsop, 10 Conn. Rep. 263. Torrey v. Holmes, Id. 499. Brush v. Scribner, 11 Conn. Rep. 388. We do not, therefore, deem it necessary to express an opinion as to the correctness of the views submitted on this part of the case, to this court, but not alluded to in the court below, by the counsel for the defendant; nor to examine particularly the numerous authorities cited in support of them ; for we think it quite clear, that upon the facts disclosed in the motion, the evidence was properly admitted, for the purposes for which it was offered and received. [368] The instruction to the jury upon the question of damages, is claimed to be incorrect. They were informed, that they should be commensurate with the injury sustained, by the acts charged and proved against the defendant. No exception is taken to this part of the charge. It is susceptible of none. It was insisted, however, at the trial, that the jury should be instructed, that if the plaintiff’s character in respect to chastity, was bad before, and at the time when the words were spoken, they ought to give only nominal damages. This instruction was properly refused. It would have required the jury to have awarded nominal damages, even had they been satisfied that her reputation as to chastity had suffered solely in consequence of the previous wrongful acts of the defendant. Besides, there may be cases in which, although the plaintiff’s general character is bad, by reason of his own misconduct, more than nominal damages may be given. If the defendant should spread a justification of the charge on the record, under circumstances which would satisfy the jury that it was done maliciously, and for the sole purpose of repeating the slander, in the most public manner, and in a form which would endure as long as the record in the case should exist, and fail to prove it, is there any rule of law, which prohibits the jury, in such a case, from giving more than nominal damages, because the plaintiff does not sustain an unblemished reputation ? The instruction which was asked, moreover, involves another principle to which we do not yield our assent. It assumes, that a plaintiff in slander, never ought to recover more than nominal damages, if his general character is bad, whether the imputation be false or true ; and that the same measure of damages is to be meted out to a plaintiff whose character has suffered from false and slanderous imputations, as to one whose character has been injured or destroyed by his own misconduct. We have no occasion to review the cases in this court, in which opinions have been expressed, that the defendant is at liberty to give in evidence, in mitigation of damages, the general bad character of the plaintiff in the particulars in which the defendant is charged with having assailed it; for it was admitted, without objection, in the present case, and went to the jury. Doubts as to the propriety of receiving it, have been suggested, by judges, in Great-Britain and elsewhere. Foot v. Tracy, 1 Johns. Rep. 44. 5 Cow. 499. [369] 10 Wend. 119. Jones v. Stevens, 11 Price 235. It is, however, admissible, and is received, so that damages may be given for an injury to character, in proportion to its worth ; and therefore, is material only in ascertaining the extent of the injury which has been received. If this be the ground of its admissibility, it would seem to follow, that, notwithstanding the character of the plaintiff may be reputed to be bad, yet if the jury believe, that it has suffered, not from his fault, but from the slanders of others, he may be entitled, (although not always and under all circumstances,) to damages proportioned to the real worth of the character which he comes into court to vindicate. If damages should be assessed in reference to this principle, the defendant would not make compensation for the wrongs committed by others, (as has been intimated.) He would make satisfaction only for the injury he himself has done, by his unfounded calumny of an innocent person. Instead of remunerating the plaintiff, for the slanders of third persons, he would be precluded merely from availing himself of their wrongful acts, to excuse or extenuate his own. In accordance with these views, the jury were told, that if they should find, that the plaintiff was an innocent and virtuous female, and that her character had been destroyed by the slanders of the defendant, and others, they might give liberal damages : but that, if they found the plaintiff had so destroyed her character, by her own lewd and dissolute conduct, as to have sustained no injury from the words spoken by the defendant, they might give only nominal damages. This instruction was precisely adapted to the case, and has our entire approbation. It was only a repetition, in language less general than that which had been before used, by the judges, that the damages ought to be commensurate with the injury sustained by the acts charged and proved against the defendant. They were not directed to give liberal, or nominal damages ; but were informed that they might give the former, if, in view of all the circumstances of the case, they should find, that the plaintiff deserved them; or the latter, if they should be of opinion, that by her own misconduct, she had established a reputation, for an injury to which, the smallest coin would be, with reference to the circumstances, an adequate compensation. The assessment of damages upon these principles, does perfect justice to both [370] parties. It gives to the plaintiff a remuneration for the actual injury she has sustained ; it compels the defendant to requite the actual wrong he has inflicted. We, therefore, do not advise a new trial-. In this opinion, the other Judges concurred. New trial not to be granted.