Wilson v. Young

LyON, J. I. The first question presented by this appeal is, whether a witness who is called by one party for the purpose of impeaching the credibility of a witness called by the other party, may be interrogated as to the general reputation of the latter, or must the interrogatory be restricted to his general reputation for truth and veracity ? Professor Greenleaf, in his treatise on the law of evidence, vol. 1, § 461, says that the regular mode in such cases is,- to enquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. It is understood that the latter part of the question is not admissible, unless the witness testify that he is acquainted with such general reputation. But in a note to that section (note 3), it is said: “Whether this enquiry into1 the — 578 — general reputation or character of the witness should be restricted to his reputation for truth and veracity, or may be made in general terms, involving his entire moral character and estimation in society, is a point upon which the American practice is not uniform. All are agreed that the true and primary inquiry is into his general character for truth and veracity, and to this point, in the northern states, it is still confined. But in several of the other states greater latitude is allowed.” The question has not been determined in this state to my knowledge, but is still an open one here; and we are at liberty, therefore, to adopt the rule which seems to us to be founded on the better reasons. In Wilson v. Noonan, 27 Wis., 598, I had occasion to express my individual' opinion upon the principle involved in the question under consideration. The complaint in that action charged the defendant therein with having written and published a libelous article which imputed corrupt conduct in office to the plaintiff, who was' a member of the state senate. It was held that it was competent for the defendant to show, in mitigation of damages, that the reputation of the plaintiff for official integrity was bad. I then thought, and still think, that in an action of that kind, testimony to impeach the reputation of the plaintiff should be restricted to his reputation in respect to the particular fault or offense which the alleged libel or slander imputes to him. The reasons there given for such opinion are applicable here, and need not be repeated. If those views are correct, it follows logically that the interrogatory put to an impeaching witness should be restricted to the general reputation for truth and veracity of the witness sought to be impeached. A person who brings an action for libel or slander puts in issue his general reputation in the particular in which his character has been assailed; and his general bad reputation in that particular may be shown by the defendant in mitigation of damages. So a party who produces a witness upon the stand, and seeks to derive benefit from his — 579 — testimony, puts in issue, in a certain sense, tbe character of bis witness for truth and. veracity. In tbe one case tbe plaintiff must be prepared to sustain bis reputation in tbe particular in wbicb it bas been assailed; and in tbe other case tbe party must, in like manner, be prepared to sustain tbe reputation of bis witness for truthfulness, or suffer tbe consequences. It is reasonable to require a party to be thus prepared, for be knows in advance wherein tbe reputation of himself or bis witness is liable to be assailed ; and be may, if be can, prepare to meet and repulse tbe assault. But if bis reputation, or that of bis witness, may be assailed generally, then must be come to the trial prepared to defend at all points, and to prove that in all respects the reputation so assailed is good. To require him to do this is unreasonable, and not in accord with tbe analogies of tbe law. The doctrine that evidence of general reputation may be given without restriction, in such cases, is necessarily based on tbe assumption that a single vice, whatever it may be, contaminates and poisons the whole moral nature —• that if a person is bad in any particular, be is, necessarily, thoroughly and entirely bad. For example, that if he is profane, he is therefore a thief; if a sabbath breaker, a liar ; if avaricious, unchaste; if a drunkard or an habitual violater of the public peace, a murderer. To embrace such a doctrine as this, tbe student of •moral philosophy would be compelled to shut out from his mind tbe teachings of bis daily experience. Certainly there can be no rule of law wbicb endorses and approves a doctrine so absurd. But it is said that a man may have grave vices, and still it cannot be shown that bis general reputation for truth and veracity is not good. This seems to be a controlling consideration in some of the cases wbicb hold that tbe inquiry of tbe impeaching witness need not be restricted to tbe reputation for veracity. The answer to this argument is, that if tbe vices of tbe person sought to be impeached do not affect his reputation — 580 — for truthfulness, tbeir existence ought not to impair the credi-ibility of his testimony. If, pn the other hand, they are of a character which pollute the moral nature, as if such person were a cheat, a swindler, an habitual perpetrator of fraud and wrong, I conceive there will be little difficulty in making proof that the general reputation of such person for truth and veracity is bad. The cases on this subject cited in Wilson v. Noonan may be consulted with profit. For convenience they are again cited here. Conroe v. Conroe, 47 Pa. St., 198; Mayer v. Mayer, 49 id., 210; Atwood v. Impson, 20 N. J. Eq. R. (5 Green), 150. In every view which I have been able to take of the question, my mind is impelled to the conclusion that the interrogatory propounded to the impeaching witness should have been restricted to the general reputation for truth and veracity of the witness sought to be impeached, and that the learned circuit judge ruled correctly that the interrogatory as to her general reputation, not thus restricted, was inadmissible. II. The remaining question is, Did the court err by refusing to instruct the jury that threatening or aggravating language used by the plaintiff to the defendants, or malicious conduct of the plaintiff, just previous to the assault, should go in mitigation both of exemplary and actual damages ? ■ ■ The instructions, so far as they appear by the bill of exceptions, were quite favorable to the defendants, yet none of them are equivalent to that of the above purport, which the court refused to give. It will be readily admitted, no doubt, that the circumstances indicated in -the instruction which the court refused to give, if they existed, would go in mitigation of exemplary damages. The precise question is, therefore, whether those circumstances may also go in mitigation of the actual damages sustained by the plaintiff. It may here be remarked that by the term “actual damages,” I understand is meant all damages ■which the law gives as compensation for the injuries sustained, — 581 — as distinguished from those which may be given, in proper cases by way of example and punishment. In Birchard v. Booth, 4 Wis., 67, which was an action to recover for personal injuries inflicted by the defendant upon she plaintiff, it was held that the latter was entitled to recover a fair compensation for all the losses and injuries which he actually sustained, without regard to the provocation he may have given, if such provocation did not constitute a legal justification for the assault and battery. In Morely v. Dunbar, 24 Wis., 183, the question was again before this court, and the chief justice there expresses the opinion, that, “ notwithstanding what was said in Birchard v. Booth, circumstances of provocation attending the transaction, or so recent as to constitute part of the res gestee, though not sufficient entirely to justify the act done, may constitute an excuse which will mitigate the actual damages; and where the provocation is great, and calculated to excite strong feelings of resentment, may reduce them to a sum which is merely nominal. This seems to follow as the necessary and logical result of the rule which permits ex • emplary damages to be recovered.” p. 187. He also cites numerous cases to sustain the foregoing views. While many of those cases fail t'o make a distinction between compensatory and exemplary damages, and hold that provoking language or malicious acts of the injured party may mitigate damages generally, some of them do make the distinction, and hold the doctrine laid down by the chief justice. We are now to inquire which of these conflicting views is the correct one, if either is correct; or whether there is not some middle ground which can be occupied and sustained on correct principles. This inquiry leads us to examine with some .care the nature of damages in actions like this, and the conditions which entitle the injured party to recover them. Most of the cases, and among them those decided by this court, mention but two kinds of damages, actual or compensatory and exemplary or punitory. And doubtless all damages which can be recovered — 582 — in such actions are either compensatory or exemplary. But this classification may be made more specific. Compensatory damages are of two kinds : 1st. Those which may be recovered for the actual personal or pecuniary injury and loss, the elements of which are, loss of time, bodily pain and suffering, impaired physical or mental powers, mutilation and disfigurement, necessary expenses of surgical and other attendance, and the like; and, 2d. Those which may be recovered for injuries to the feelings, of which latter class the elements are, the insult, the indignity, the public exposure and contumely, and the like. That damages for injury to the feelings are actual or compensatory in their nature, cannot well be doubted; yet, unlike those for the mere personal or bodily injury, such damages can only be recovered when the aggressor is animated by a malicious motive — when there is an intention on his part to outrage the feelings of the injured party, to insult, to aggravate or to oppress. Sedgwick on Damages, 33. The right to recover exemplary damages rests upon precisely the same grounds. Now the principle upon which proof of the language and conduct of the plaintiff is admissible in these actions, in proper cases, is, briefly, that inasmuch as the malice of the defendant may be proved to aggravate the damages, therefore the malice of the plaintiff may be shown to mitigate the same. But the malice of the defendant can never increase the damages for the actual pecuniary injury and loss, that is, for the mere personal injury. These are entirely unaffected by the presence or absence of malice by the defendant. Such being the case, on what principle can it be held that the malice of the plaintiff may mitigate those damages? Certainly the principle just stated does not lead to that result. But damages for injury to the feelings, and exemplary damages, depend entirely upon the malice of the defendant; and these may be mitigated, and perhaps in most cases entirely defeated, by proof of the malicious language or conduct of the plaintiff, although the same does not constitute a legal justifi — 583 — cation of tbe injury. This seems to me to be the true application of the principle which admits evidence of the malice of the plaintiff in mitigation of damages. Such an application of the principle resolves the damages which may be recovered into the constituent parts thereof, and leaves the element which the malice of the defendant cannot increase, unaffected by the malice of the plaintiff, while it permits those elements which depend upon the malice of the former to be mitigated or entirely destroyed by proof of the malice of the latter. In Morely v. Dunbar, the chief justice says: “ Where motive constitutes a basis for increasing the damages of the plaintiff above those actually sustained, there it should, under proper circumstances, constitute the basis for reducing them below the same standard.” I thinlc the principle there stated lacks the qualification above indicated, that in no case can the motive of the plaintiff reduce the damages below compensation for the actual bodily injury and pecuniary loss resulting from the act of the defendant. It has already been said that the most of the cases on this subject mention but two kinds or classes of damages in actions for personal injuries. However, Mr. Sedgwick, in his treatise on the measure of damages, informs us that the classification of compensatory damages here attempted to be made is fully recognized in the laws of Scotland (p. 83, note w). I believe that such classification is inherent in our law, and cannot be ignored without disregarding the fundamental principles upon which rests the right to recover damages in actions like this. But there is one case, at least, in this country, wherein the views here advanced are fully adopted. That is the case of Prentiss v. Shaw, 56 Me., 427, cited in Morely v. Dunbar from 8 Am. Law Reg., N. S., 712; and it demands something more than a mere passing notice. The action was for personal injuries inflicted by the defendants therein upon the plaintiff, under the following circumstances: The plaintiff, upon being informed thereof, expressed his gratification that President — 584 — Lincoln bad been assassinated; whereupon the defendants, acting under the advice of a provost marshal, and being accompanied by a crowd of excited men, seized him while he was at a blacksmith shop having his horses shod, forcibly placed him in a wagon, transported him, a prisoner, three miles to a village, and confined him for several hours in a room in a hotel there. During this time persons in the crowd threatened Mm with extreme personal violence. On the same day he was taken by the defendants before a public meeting of the citizens, called at the town house, at which a moderator and clerk were chosen and acted officially. The meeting passed a vote that the plaintiff be discharged on his taking an oath to support the constitution of the United States, He voluntarily took such oath, and was thereupon discharged. On the trial of the action, the presiding judge instructed the jury that the defendants had shown no legal justification for their acts, and must be found guilty; that the only question for the jury was the amount of damages; that the plaintiff claimed damages on three grounds : 1st. For the actual injury to his person and for his detention; 2d. For the injury to his feelings, the indignity and the public exposure; and 3d. For punitive or exemplary damages. That they were bound to give, at all events, damages to the full extent for the injuries to the plaintiff’s person, and for his detention; and that as to damages for the second and third grounds, it was for the jury to determine, on the whole evidence, whether any should be allowed, and the amount. He also explained to the jury the nature and grounds of such damage, and instructed them, inter alia, that they could only consider the evidence introduced by the defendants under the second and third heads above set forth, and in mitigation of airy damages they might find under either or both of said heads, if, in their judgment, those facts did mitigate such damages; but that they could not consider them under the first head. The plaintiff had a verdict for six dollars and forty-six cents ; and the case came before the supreme court of Maine on excep — 585 — tions to tbe above instructions taken and alleged by tbe plaintiff. That court held that tbe instructions to which exceptions were taken were correct: that the judge who presided at the trial gave to the jury “ the rules on this subject which are practical and in accordance with common sense and the general principles of the law; ” and it overruled the exceptions. The opinion of the court in that case (from which there does not appear to have been any dissent) was written by KENT, J., and is a most able and convincing exposition of the law of damages in actions for personal injuries, and fully sustains the correctness of the foregoing instructions. I have thus endeavored to demonstrate that the malice of the plaintiff may, in proper cases, be shown in mitigation of compensatory or actual damages; and if the effort has been successful, it follows that the instruction asked by the defendants in this case, and refused by the circuit judge, should have been given, but with the explanation (if the plaintiff desired such explanation), that the aggravating language or malicious conduct of the plaintiff could only mitigate those compensatory damages which might be given for injury to his feelings. The jury gave quite heavy damages, and the verdict ought not to stand unless those rules of law which are favorable to the defendant were fully given to the jury. Believing that this was not done, I think that there should be -another trial.