Shilling v. Carson ex rel. Cook

Boavib, C. J., delivered the opinion of this Court. The action in Avhich this appeal is taken is a suit for defamation of character, brought by the appellee against the appellants, for malicious Avords spoken by Harriet, the Avife. The Avords charged are made actionable by the Code of Pub. Geni. Luavs, Art. 89, secs. 1, 2. — 184 — Issue was joined on the general plea that the defendant Harriet did not commit the wrongs as alleged in the declaration, which is equivalent to “non cul.” under the old forms. At the trial, the plaintiff having given evidence to support the issue on her part by examining her mother, the defendants, on cross-examination, proposed to prove by the same witness that she had heard “rumors and reports touching the character of the plaintiff for chastity before the interview in which the defendant used the defamatory words charged, and had spoken to others, and complained to them, and had frequent misunderstandings with them on the same subject," to which the plaintiff objected, and the Court sustained the objection, which forms the ground of the first bill of exceptions on the part of the defendant. The defendants, then, further to support the issue on their part, after proving that the witness was present at the conversation testified to by plaintiff's witnesses, in which the latter charged the daughter of the defendant with using defamatory words, and said to her, “ Harriet Shilling,'I want you to stop your daughter from calling my daughter a-," proposed to call the daughter to prove she at no time, and to no person, used such language ; which being objected to by the plaintiff, and sustained by the Court, constitutes the second exception. The record does not show for what purpose the testimony offered and excluded in the first exception of the defendant was proposed to be given, but it must be inferred from the pleadings that its was offered in mitigation of damages, as it is very well understood, according to the practice in this State, it could not have been admitted for any other purpose. It is insisted, on the part of the appellants, that the testimony offered should have been admitted to reduce the damages, whether they are regarded as punitive or — 185 — compensatory; if the former, as showing the words spoken were not littered maliciously, but as a common rumor ; if the latter, because they showed the general reputation of the plaintiff for chastity was before then impeached. The appellee contends that the testimony offered was properly rejected, as it virtually tended to extenuate the wrong of the defendant, by proof of its repetition, since the rumors might have originated with the defendant. In the case of Wagner vs. Holbrunner, this Court announces the principle which governs the admission of evidence in mitigation of dkmages, in actions of slander, as follows : “ As in all actions of slander the plaintiff is permitted to prove the malicious intent, in order to aggravate the damages, so the defendant, to repel it, may show grounds of suspicion of the truth of the charge, by facts and circumstances ; not in bar of the action, but in mitigation of damages.” 7 Gill, 300. The defamation complained of in this case appears to have occurred at an interview between the plaintiff’s mother and defendant’s wife, in which the latter used the words complained of, in reply to the threat of the former, to sue the defendant’s daughter. It does not appear that the defendant Harriet had ever before used any defamatory words of the plaintiff. It would be a violent presumption to suppose she was the author of all the former reports which the witness had heard in the absence of such proof. Where general character is the subject of defamation, the defendant would not be permitted to diminish the damages by evidence of particular instances of misconduct, because the plaintiff is required to be prepared only to maintain his general reputation; but if the subject matter of the suit be the reputation of a woman for chastity she must be expected to be ready to vindicate her character in that particualr in which it is impugned. General — 186 — reputation for a want of chastity would certainly be admissible in mitigation of damages. The admission of evidence in mitigation of damages being either to show the absence of malice, or the want of reputation, whatever circumstance tends to prove the one or the other, is within the reason of the rule. As we have shown, this Court has decided that facts and circumstances may be given in evidence, under the general issue, not amounting to proof of justification, but has not defined what constitutes such facts and circumstances. Professor G-reenleaf, in his 2d vol. on Evidence, section 275, says : “ But whether the defendant will be permitted, under the general issue, to prove general suspicions and common reports of the guilt of the plaintiff in mitigation of damages, is not universally agreed. It seems, however, that where the evidence goes to prove the defendant did not act wantonly and under the influence of actual malice, or is offered solely to show the real character and degree of the malice which the law implies from the falsity of the charge, all intention of proving the truth being expressly disclaimed, it may be admitted and of course bo considered by the jury.” In the case of Walcott vs. Hall, 6 Mass., 514, 518, in which Chief Justice Parsons so eloquently denounced the attempt of the defendant to introduce reports of the guilt of the plaintiff, the defendant justified, and then sought, in mitigation of damages, (failing in proof of his plea,) to show the plaintiff liad been charged with theft in particular instances. There, it was very properly said, evidence of the plaintiff’s general character was not offered, but only an attempt to blast his reputation by particular reports — such an attempt under the circumstances was evidence of continuing malice. Where, however, the defendant denies using the defamatory words, she admits their falsehood, and the effort to show the circumstances under which they were used implies no persistence in the — 187 — charge, hut recantation and apology. The evidence proposed to be offered by the defendant, on cross-examination of the plaintiff’s witness, was not mere rumor or report, but the fací, that before the defamation complained of, the witness, the plaintiff’s “ mother, had spoken to others and complained to them, and had frequent misunderstandings with them on the, same subject.” These are circumstances to show the words were spoken under an impression of their truth, and not with any malicious intention. This testimony is closely analogous to that which was admitted or ruled to be good by Lord Ellenborough in the case of - vs. Moor, 1 Maule & Selwyn, 284. In that case the witness who proved the slanderous words, imputing unnatural practices to the defendant, was asked upon cross-examination whether he had not heard reports in the neighborhood that the plaintiff had been guilty of similar practices. Lord Ellenboropgh held the evidence admissible in mitigation of damages upon the ground that a person of disparaged fame is not entitled to the same measure of damages as one of unblemished character. The case of Leicester vs. Walter, 2 Camp., 251, it is said turned somewhat on the inducement of the nar., which set forth that the plaintiff had always preserved a good character in society, and this was referred toby Sir James Mansfield as a reason for admitting evidence of reports ; but in summing up he said : “ The jury Avould consider, in assessing the damages, whether the reports which had been proved wmre sufficient to show he could receive little injury, and in this point of view it did not matter whether the reports were well or ill founded, provided they got into many men’s mouths.” This is an extreme case, much to be deprecated, but illustrates the principle of the rule, showing the extent of the injury received, is to be measured by the actual standing or character of the plaintiff at the time of the defamation complained of. Under the system of pleading sanctioned by the Code, — 188 — no inducement, setting forth, the previous reputation of the plaintiff, is necessary in the action of slander. Every woman is presumed to he chaste and every man to he honest, until the contrary is shown. It being necessarily implied, the rules of evidence in mitigation of damages must be the same as if such inducement were averred. For these reasons we think the Court below erred in excluding the evidence proposed to be offered by the defendants in their first bill of exceptions. (Decided 12th June, 1867.) The testimony of the daughter of the defendants, which is the subject of their second bill of exceptions, was entirely collateral to the issue, and properly excluded. As this case will be remanded, it will be proper to express the opinion of this Court upon the correctness of the decision of the Court below upon the plaintiffs/ bill of exceptions. The ruling of the Court below was entirely proper in excluding the testimony proposed as evidence in chief, but as it appears from what has preceded, the testimony offered by the defendants in their first bill of exceptions should have been admitted; the evidence offered by the plaintiffs in their bill of exceptions would be material and competent as rebutting testimony. Judgment reversed and procedendo awarded.