Hutchinson v. Wheeler

Poland, Ch. J. In an action of slander, for words imputing a crime to the plaintiff, on" proving that the defendant spoke the words constituting the charge, the plaintiff is entitled to recover, — 336 — unless the defendant interpose some ground of justification by-plea, and support it by proof. The plaintiff is not bound to give any proof of malice in the defendant; the law implies malice from the speaking, sufficient to maintain the action. The action, however, proceeds on the ground of malicious speaking, and malice is one of the most important and essential elements of the defendant's liability. The plaintiff may, for the purpose of enhancing his right to recover damages against the defendant, give in evidence almost any facts tending to prove that he was in fact actuated by malicious motives in speaking the words. So, on the other hand, the defendant may give in evidence facts and circumstauces, to rebut the proof or presumption of malice, and thereby lessen or mitigate the damages. Ue can not justify the speaking, by proving the truth of the charge, or in any other way, under the general issue, as such defence must always be specially pleaded ; but he may, under the general issue, give in evidence any facts that tend properly to show that he did not speak the words wantonly and maliciously, for the purpose of injury to the character of the plaintiff. One of the grounds on which a defendant in such action may disprove malice, and so mitigate the damages, is by proof of such facts and circumstauces as show that he had reato believe, and did believe, when he spoke the words, that they were (rue, and that therefore he acted bona fide, and not wantonly and maliciously, when ho spoke them. This general proposition is not denied in any of the cases on this subject, but many cases, especially in New York, add to this a qualification, that such facts and circumstances must not be such as- tend to prove the truth, or would form links in a chain of evidence to establish a justification. It is certainly difficult to see what facts or circumstances could exist, that could justify one in believing or suspecting that another had committed a crime, when such facts and circumstauces had no'tendency to prove it, and could not be used even as liuks in a chain of evidence to establish, it. There is a very great conflict of decision in the cases on this subject, and the decision's are numerous where this qualification has been wholly rejected. — 337 — We are not aware that the question has ever been decided in this state, and we therefore are at liberty to adopt such rule as we deem best founded in reason, and most consonant to general legal principles. In Williams v. Miner, 18 Conn. 463, this question arose, and the whole subject is most thoroughly discussed, and all the cases, English and American, examined by Church, Ch. J. The principle established by that case is thus stated: “ In an action of slander the defendant, under the general issue, without notice of special matter of defence or justification, may prove, to repel the presumption of malice, and in mitigation of damages, facts and circumstances showing a reasonable ground of belief in the defendant of the truth of the words, but not amounting to proof of their actual truth.” We are best satisfied with the rule there laid down, as one founded in good reason, and running counter to no other established rule of law. The defendant introducing such proof is not allowed to introduce it as evidence of the truth of the charge, nor to claim for it, or ■ argue from it, that the charge is true, or probably true, but only that he was thereby induced to believe that what he said was true, and therefore spoke the words in good faith. Nor can a defendant in such a case go into evidence that really proves the charge to be true, under pretence of mitigating the damages, he must concede that his evidence does not support it. The evidence offered by the defendant and admitted in this case, against the objection of the plaintiff, was in substance this, — that the defendant’s cow had been poisoned by some one ; that for a period of some three years, there had been a violent quarrel between the plaintiff and the defendant, and a bitter feeling of hostility on the part of the plaintiff towards the defendant ; that two or three years before this, and after the defendant had poisoned the plaintiff’s dog, and some others, that had damaged hides in his tannery, the plaintiff threatened that he would-pay the defendant in his own coin, and repeated this in substance at different times ; that about a year before this time, the plaintiff, without any just cause, had attempted to get a criminal prosecution instituted against the defendant; and that a few days — 338 — before the loss of the cow by the defendant, a new quarrel had broken out between the parties, growing out of some slanderous story in relation to the defendant’s wife, which he claimed had been circulated by the plaintiff’s wife. This evidence is first objected to, on the ground that those facts, if true, would tend to prove the truth of the words, or at least that they would, or might, form links in a chain of evidence to prove the truth of them. It must be conceded, that if the defendant had pleaded in justification that the words were true, or if the plaintiff had been indicted for the offence imputed, some of these facts would have been, not only admissible, but necessary evidence. It would have been necessary to prove that the defendant’s cow was poisoned. This would have to be proved, in order to show that the crime had been committed. By itself, it no more proved that it was committed by the plaintiff than by any other person; it would-be a fact necessary to be proved in a prosecution against any one. So it would be admissible to prove that a quarrel existed between the parties, in order to show a motive on the part of the plaintiff to commit the crime ; and the evidence that the plaintiff had made threats against the defendant, would have a still stronger effect against the plaintiff. But if the evidence of all these facts was satisfactory, it would all fall quite short of establishing proof of the offence, and therefore, as already stated, is not open, to the objection that the defendant was really proving a justification-under the general issue. At the same time we think these facts might have had, and naturally would have, an effect upon the mind of the defendant, to induce him to believe that the plaintiff had done him the injury he had suffered. Some one had secretly poisoned his cow. The first impulse of his-mind would be, that it was done by an enemy. It was a crime that could have been committed from no motive-of interest or advantage to the perpetrator, but only to do damage to the owner. The facts admitted in evidence tended to show that-a bitter- feeling had existed between the parties for a long time ; the plaintiff had threatened revenge ; he had wrongfully attempted to get the defendant prosecuted ; and a new and fresh eause of quarrel had; just broken out between them. Was it not — 339 — perfectly natural and legitimate that the defendant’s conclusion wouldbe, that the injury he had suffered Was caused by the' plaintiff, without further ground of belief, even though these factá alone Would furnish no sufficient legal evidence of the fact ? In our judgment they Would naturally have this effect, ánd Were therefore admissible in evidence, as tending to sh'óW that When the defendant made the charge, he' made it in good faith, Supposing he had sufficient reason to believe it tó bé true. It is also objected that if it Were ádmíásiblé tó prove that' a state of hostility and ill feeling existed between the parties, only-general evidence should havé been admitted, and not evidence of particular facts. But it is often difficult in such cases to ascertain the true state of feeling, and the extent and intensity of hostile feeling, between parties, by nieré generál evidence’, a’rid it must depend much upon the" circumstances of each particular case,- how far it is necessary to allow such evidence tó go into detail, to show it, and much must be left in this regard tó íhé discretion of the judge conducting the trial, to get the matter fairly before the jury. It is also objected that by this course of pfocéedihg, evidence may be introduced relative to many different trárisaé'tióná,- óf which the plaintiff has no notice from the pleadings, and therefore may not be prepared to meet and rebut them with his' proofs, But we do not apprehend any great practical difficulty on this subject, no greater at least than may arise iñ any case wheré any other class of facts and circumstances may be relied on to rebut the presumption of malice. In this class of eases, involving questions óf character, a wide range is usually takén, ánd generally no great danger of surprise by the introduction of proof of which the other party is not apprised. If, howéve’r, a party is really taken by surprise, the court before whom the suit is tried will take care that the party is not prejudiced thereby. The objection, we think, is more fanciful than real. The evidence objected to, we think, was properly admitted for the purpose for which it was offered, and the charge of the court upon it, and its effect, was entirely correct. The objections to the charge are in substance the same as those ipade to the evidence jtself, which are not tenable. — 340 — The remaining objection is to the admission of the evidence of Templeton to contradict the plaintiff’s witness, Kelly. Kelly on his cross examination had been enquired of as to the relations between him and the parties, as to his friendship to the plaintiff, and hostility to the defendant, and particularly if the plaintiff had not aided and assisted him in a law suit against the defendant. This he denied. Templeton was called by the defendant to contradict him in this partcular. It is objected that the inquiry to Kelly was wholly collateral, and that therefore the defendant was bound by Kelly’s answer. V It is always admissible for the purpose of affecting the credibility of a witness to. prove his friendly relations to the party calling him, and hostility to the party against whom he testifies, or that his interest is in favor of the one, and against the other, and it has never been supposed, that a party by enquiring as to these matters on cross examination of the witness, was precluded from proving the contrary if he could, j Such enquii'ies ax-e not collateral, so that the party is bound by the witness’ answer. The coxnmon case of asking a witness on cross examination, if he has not stated differently from what he testifies, stands on the same principle, and here the settled rule of practice requires the witness to be first enquired of. It would be very novel, that a witness who should deny on cross examination that he was interested for the party calling him, or that he was hostile to, or had made threats against, the other, could not be contradicted. The settled practice has been the other way. The case of Stevens v. Beach, 12 Vt. 583, cited by the plaintiff to support this objection, was wholly a different question ; the question put and answered on cross examination was purely and strictly collateral. The judgment is affirmed,