McDonald v. Louthen

Hart, J., (after stating the facts). The plaintiff assigns as error the action of the court in giving the following instruction: “You are instructed that one of the defenses in this case is the truth of the allegation, if made by defendant, and that one of the ways of making that proof is to show that the reputation of plaintiff in the neighborhood in which he lives is bad for honesty, or for truth, or for veracity, or morality; and if you believe this reputation has been successfully established, you would be authorized to weigh and consider it in passing upon .the question as to whether or not he is entitled to damages or not. ’ ’ The court erred in giving this instruction to the jury. The plaintiff’s bad character furnished no excuse to the defendant for calling him a thief. The only legitimate effect of such evidence is to reduce the damages. A person whose reputation is bad is in contemplation of the law as well as in fact, injured less by slander than one whose reputation had previously been good. Campbell v. Bannister, 79 Ky. 205. The reason that the general character may be attacked is because this is relied upon as the ground of damages, and the plaintiff, is supposed at all times to be prepared to sustain his general character. On this point Professor Greenleaf says: “Whether evidence impeaching the plaintiff’s previous general character is admissible in an action of slander, as affecting the question of damages, is a point which has been much controverted; but the weight of authority is in favor of admitting such evidence.”' 1 Greenleaf on Evidence (15 ed.), § 55. ■ • In 25 Cyc. 418, it is said that the general bad character or reputation of plaintiff is a mitigating circumstance in libel or slander. In the action the plaintiff complains that the defendant has injured his character or reputation. Therefore, the defendant may prove that the plaintiff’s general reputation was already bad with a view of lessening his damages. Newell on Slander and Libel (3 ed.), p. 1068, par. 1044; Stone v. Varney (Mass.), 39 Am. Dec. 762; Parkhurst v. Ketchum (Mass.), 83 Am. Dec. 639; Sheahan v. Collins (Ill.), 71 Am. Dec. 271; Waters v. Jones (Ala.), 29 Am. Dec. 261; Hearne v. De Young (Cal.), 64 Pac. 576; Smith v. Smith, 8 Iredell 29 (N. C.); Sawyer v. Eifert (S. C.), 10 Am. Dec. 633, and DuVal v. Davey, 32 Ohio St. Rep. 604. So, too, where the plaintiff alleges the injury to have been occasioned by slander affecting his character in any particular respect, it tends to mitigate the damages, if it is- shown that, at the time of the utterances of the slander alleged, his general reputation in that respect was already bad. As he is expected to be always ready to defend his general character, so also he should be ready to defend it with reference to that matter wherein he alleges it to have been wrongfully assailed. That is to say, where the charge was that of larceny, the plaintiff’s reputation for honesty and integrity are the traits involved. Clark v. Brown, 116 Mass. 504; Anthony v. Stephens (Mo.), 13 Am. Dec. 497; Finley v. Widner (Mich.), 70 N. W. 433; Lincoln v. Chrisman (Va.), 10 Leigh 338; Wilson v. Noonan, 35 Wis. 321; Drown v. Allen, 91 Pa. St. Rep. 393, and Warner v. Lockerby (Minn.), 18 N. W. 145, and B— v. I—, 22 Wis. 372, 94 Am. Dec. 604. Counsel for the plaintiff also assign as error the action of the court in refusing to charge that the words used by defendant were actionable per se. The words used by the defendant, unexplained, amounted to a charge that the plaintiff had been guilty of larceny, which is an infamous crime. There was no explanation, and the court should have given the instruction asked. Stallings v. Whittaker, 55 Ark. 494; Gaines v. Belding, 56 Ark. 100; Jackson v. Williams, 92 Ark. 487; Van Hoozer v. Butler, 131 Ark. 404. It follows €•■ ' the judgment must be reversed, and the cause will be remanded for a new trial.