Opinion
Rehearing (Denied, Granted) 51 Cal. 420 at 422.
Appeal from the District Court, Third Judicial District, County of Alameda.
Action to recover damages for speaking slanderous words. The complaint alleged that the defendant, in the presence of third persons, called the female plaintiff a damned thief and a damned whore, and that, at the time of speaking the words, the female plaintiff " sustained a good name and character among her neighbors and acquaintances for moral worth, honesty, virtue, and integrity." The plaintiff obtained the verdict of a jury and had judgment in his favor. The defendant moved for a new trial on a bill of exceptions. The judge extended the statutory time for filing the bill of exceptions. The court denied a new trial, and the defendant appealed from the order and judgment. The clerk, in certifying to the transcript, merely stated, " The foregoing are full, true, and correct copies of originals on file and of record in my office, and that the foregoing constitutes the transcript on appeal from the judgment and from the order of the court denying defendant's motion for a new trial."
COUNSEL:
The defendant's answer asserted nothing but his own innocence; true, he denied the plaintiffs' allegation as to her having a good name, etc., but he did not affirm that she had a bad name or a bad character; she may have had no character of any kind; may have been a recent arrival in that neighborhood and not have acquired any character or reputation (for reputation is character) to be injured. (Townshend on Slander and Libel, note 20.)
The only case in which the answer of a defendant in a suit of this kind can be used in aggravation of damages, is where justification is pleaded and fails upon proof, because this is a republication of the slander. (Townshend, supra, sec. 400.)
Z. Montgomery, and Moore, Laine, Delmas & Leib, for the Appellant.
Burch & Griffith, for the Respondent.
The instruction assigned as error is correct. The Civil Code, sec. 43, declares that every one has the " personal right of protection" * * * " from defamation," * * which means that every one is presumed in law to have a character for " honesty" and " chastity," until the contrary is proved. By section 48, slander is defined as a chargewhich imputes to another a crime (subd. 1), such as, " You are a thief; " or, with a " want of chastity " (sec. 4), such as, " You are a whore," and are actionable per se, malice being inferred from the use of such language (Id. sec. 48), and the jury may award exemplary damages. (Id. secs. 3281-3294; Lick v. Owen , 47 Cal. 252.)
OPINION A rehearing was granted, after which the following opinion was delivered by the Court:
The certificate of the clerk is sufficient in point of form. The judge had authority to extend the time for filing the bill of exceptions, and the bill was filed within the time allowed. The objections taken by the respondent, are, therefore, overruled, and the judgment and order denying a new trial are reversed and the cause remanded for the reasons stated in the former opinion.
Remittitur forthwith.