Opinion
Fall Sessions, 1841.
Clayton, Frame and McFee, for plaintiff.
Bates, Ridgely and Smithers, for defendant.
ACTION on the case for words.
The narr. set out the slander in numerous counts, all amounting, however, to a charge that Parke broke open a letter placed in his hands by defendant to deliver to another, and stole from it ten dollars. In some of the counts there was added a charge, that this was not the first time he had been guilty of a like offence. The defendant pleaded, not guilty, and justification on the truth of the words spoken; and at the trial, on motion, withdrew the plea of not guilty, and stood alone on the justification.
When the defendant had closed his testimony, the plaintiff called witnesses to support his general character. This was objected to.
Ridgely, Smithers and Bates. — We have not attacked the plaintiff's general character, and would not have been permitted to do so. Neither shall he be permitted to set up his general good character. The testimony is irrelevant. It has nothing to do with the issue in this cause, which is not on the general character of the plaintiff, but on a specific charge of taking money out of a letter. The gist of the action is malice and not character. (5 Exch. Rep. 63; 11 Price 235, Jones vs. Stevens; 1 Ry. Moody 305; 21 Eng. C. L. Rep. 447; 2 Stark. Evid. 214, 878; 2 Phil. Evid. 107; 10 Johns. Rep. 281; 1 Term Rep. 754; 1 Camp. Rep. 460.)
The law presumes that plaintiff had a good character, and the burden is upon us to prove the charge, even as against this legal presumption. There is no necessity then, nor propriety, in hearing evidence of good character.
Frame and Clayton, contra. — The question is one of great magnitude. We submit that the authorities sustain these positions; that under the plea of justification the plaintiff may give in evidence his rank and character; and that he has maintained an honest reputation. The authorities are conflicting, but those of most weight, and best sustained by principle, are for admitting the evidence. Cornwell vs. Richardson is merely a nisi prius case, and the reporter discredits it by a reference to several cases which are contra. Chief Justice Abbott rejected the evidence without argument and without authority cited — it is a mere hasty decision, and more than counterbalanced by lord Alvanly's judgment in 5 Esp. N. P. cases 13, 14. Barnfield vs. Murry, 1 Camp. 460, was a case of seduction and not in point. Roscoe's Evid. is loose and not sustained. 3 Stark. Evid. 215, c., on the contrary is well supported.
On principle our position is correct. The charges here are infamous in their nature. If true, they are totally destructive of the plaintiff's character. The meanest criminal on his trial may avail himself of his character in his own defence, and yet here in a civil action, a man may be convicted of a crime, without being permitted to give in evidence his character.
The evidence is equally necessary in reference to the damages. How can the jury assess the damage which has been done to plaintiff's character by the slander, without proof of what that character was before the slander. (2 Stark. Ev. 214-15: 2 Wheat. Selw. 977; 3 Mass. Rep. 546, Larned vs. Buffington; Stark. on Slander 399, 179; 2 Han: Rep. 446, Waples vs. Burton; 3 Yeates Rep. 243; 11 Johns. Rep. 38.)
By the Court:
The question submitted to us is, whether in an action, of slander on the plea of justification the plaintiff may give his own character in evidence, either to meet the defendant's proof of facts, or to aggravate the damages. It would seem that in the action of slander, on the plea of not guilty, the plaintiff cannot give evidence of his general good character, either in support of his own averments of good name, fame and condition, or to aggravate the damages; though it has often been decided, that the defendant might, under the general issue, give evidence of plaintiff's bad character in mitigation of damages; but this has been overruled by the case of Jones vs. Stevens, 11 Price 235, (5 Exc. Rep. 62,) where it was decided that in an action for slander in reference to plaintiff's professional character as an attorney, general evidence of the plaintiff's bad character and ill repute in his business of attorney, could not be given by the defendant, either to contradict the averment of good professional standing or in support of averments to the contrary in the plea of justification. In this case there is no plea of not guilty; the plea justifies on the ground that the words spoken are true, and the defendant takes upon himself the duty of proving the charge by specific evidence of the fact charged. He would not, according to the case of Jones vs. Stevens, be allowed even to strengthen his case by proof of the plaintiff's bad character; much less then should a plaintiff when his general character is not attacked, be permitted to give evidence of general good character to disprove the specific charge. The law presumes that he has a good character, and it would seem to be a work of supererogation to call evidence in support of that which is presumed to be good. The plaintiff here has brought the defendant into court to make good a specific charge of dishonesty, or to answer in damages for the slander; the defendant by his plea of justification undertakes to make his charge good, and he must do it by specific proof of the act or acts of dishonesty charged. He will not be permitted to support his charge, nor can the plaintiff rebut it, by general proof of bad or good character, which, though it may be affected by the result, is not really put in issue by the pleadings. A majority of the court, therefore, rule out the evidence offered of plaintiff's good character; but we will, on the authority of 3 Mass. Rep. 546, allow proof of the rank, profession and standing of either plaintiff or defendant. (2 Stark. Ev. 470, n.)
After stating the nature of the action, explaining the object of the several counts in the declaration, reading the slanderous words laid in them, and explaining the office of an inuendo, he remarked, that the matter of complaint which the defendant was called upon to answer in this action, was in substance reduced to this: that he had falsely and maliciously charged the plaintiff with feloniously stealing ten dollars enclosed by the defendant in a letter to his sister, which he entrusted to the plaintiff to deliver to her. The defendant having withdrawn the plea of not guilty, rests his defence on the plea of justification; that is, he alleges the charge to be true, that the plaintiff did steal the money from the letter. The whole case then is confined to that single point; which being a question of fact, is exclusively for the determination of the jury. The burden of proof is on the defendant. He must stand or fall upon his plea of jutsification; and therefore, he cannot impeach the plaintiff's general character, nor has he attempted to do so. For the same reason, that is, because the character which the plaintiff has heretofore sustained, is not put in issue under the plea of justification, the court refused to permit the plaintiff to go into evidence of his general good character for honesty and integrity. The law presumes it to be good in these respects; and he stands before the jury, with all the benefit arising from such presumption.
The defendant then must prove, that the words uttered by him are true in substance, and in fact, as to all the material parts of the slander; and the charge must be made out by positive or circumstantial evidence, with the same precision that would be required on an indictment for larceny. No suspicions, however strong, will amount to a justification. If the defendant has clearly established the truth to the satisfaction of the jury, he is entitled to their verdict; but if he has failed to do so, their verdict ought to be rendered for the plaintiff.
Supposing the verdict to be for the plaintiff, the only question then is, as to the amount of damages. This is exclusively with the jury to determine, and is entirely in their discretion. The measure of damages in this action, is the extent of the injury which the party slandered, has sustained. But as malice is the essence or gist of the action, the amount of damages mainly depends upon the degree of malice and the wantonness and malignity of intention on the part of the defendant to injure the plaintiff. Malice is either express or implied. Express malice is where the act arises from ill-will, from a malevolent design towards an individual, of doing him mischief. Implied malice is, where the wrongful act is intentionally done, without just cause or excuse. When slanderous words impute a crime and are in themselves actionable, the law presumes malice. In the present case, the defendant admits that he spoke the words laid in the declaration. If false, as they impute a criminal charge, the law implies malice, and presumes the plaintiff is injured and entitled to damages.
If in addition to the speaking of the words, the defendant was actuated by express malice, the jury may give exemplary or vindictive damages. Where the defendant pleads a justification, without any other plea, and the plea of justification is wholly unsupported by the proof; or if the evidence offered is frivolous or groundless, or if it appears that the plea, not being proved, is used with the intention of wantonly or malignantly attacking the plaintiff's character, or wounding his feelings, it is evidence of express malice, and presents a proper case for exemplary damages. But the mere fact of putting in the plea of justification, and failure fully to sustain it by such precision of proof as is necessary on an indictment, are not to be considered in all cases, as evidence of express malice, and as calling for exemplary damages. If a defendant having reasonable cause and good grounds to believe the plaintiff guilty of theft, and having evidence in his power creating a strong presumption of guilt, puts in the plea of justification, honestly believing the charge to be true, but his proof turns out, in the estimation of a jury, to be insufficient to establish the charge beyond a reasonable doubt; the extenuating circumstances tending to show the absence of express malice, may properly be taken into consideration by the jury, in mitigation of damages. In such a case, the defendant is driven to the plea of justification, since the decision of this court in Waggstaff vs. Ashton, 1 Harr. Rep. 506, where it is laid down, that evidence of the truth of the words is not admissible either in bar of the action, or in mitigation of the damages, unless specially pleaded; and that neither the truth, nor facts tending to establish the truth, can be proved under the general issue.
It is then for the jury to say, from the acts and declarations of the defendant and all the other testimony in the cause, whether he was actuated by express malice. If he was, they are warranted in giving exemplary or vindictive damages. If he was not, the jury ought not to give damages beyond the extent of the injury which the plaintiff has sustained.
Verdict for the plaintiff; damages $100.
on the ground that the charge was not only of a specific act of dishonesty, but impeached the plaintiff's character generally. On this account he was for admitting proof of character on the part of the plaintiff to meet this general imputation. The words laid in one count and justified by the plea are: "He robbed my sister's letter — I can prove it — and it is not the first time he has done this thing." He admitted that the current of English authorities was against admitting evidence of character: but he thought the American authorities were contrary. (2 Stark. Ev. 216, 471; 2 Russ. 703; 3 Dana's Rep. 432.) In his view, character was essentially in issue in these cases of slander, where the defendant justifies; and also in cases of seduction; as much so as in, criminal cases, in which it is always competent for the party charged to give his general character in evidence, and have the benefit of that character, in cases of doubt as to the truth of the specific charge.
The plaintiff now called a witness to prove his condition in life, and he was proved to be a mail contractor and stage driver. Question. — Was he frequently intrusted in that capacity with the carrying of money? This evidence was objected to; and ruled out by the court, its object appearing to them to be to prove character, and not occupation.
A witness was called to the stand, and after proving the uttering of the slander, was asked to state the defendant's manner of making the charge, his language and the replies of the plaintiff at the time, with a view to show express malice. This also was objected to; and admitted by the court.
The plaintiff's counsel asked the court to charge. — 1st. That a specific slander being proved, other slanders are to be considered in aggravation of damages. 2d. That proof in an action of slander on a plea of justification must be plenary; no suspicion however strong will support the plea of justification. ( Stark. Sland. 180.) 3d. The plea of justification on the record, without any other plea, if unsustained by the proof is, per se, evidence of malice. It is a voluntary, deliberate and permanent repetition of the slander. (15 Mass. Rep. 49; 7 Cowen's Rep. 629-30-33.) 4th. That as it was proved the defendant, at the time of the slander, invited the plaintiff to fight, this was evidence of express malice. 5th. That the defence now made at the bar, charging as it did the plaintiff with theft, was evidence of malice, for the lawyer speaks by the instruction of his client. 6th. That where express malice is proved the jury are warranted in giving exemplary damages. ( Goslin vs. Cannon, 1 Harr. Rep. 1.) Compensatory damages are for wounded feelings, time lost, and money expended in the suit. Exemplary damages, to warn the slanderer that he is violating the laws of the land; to close his mouth; to protect society, and secure it from the use of the pistol and bowie knife, by an assurance that the law will avenge all wrongs, and that private vengeance is unnecessary. Society is always wounded when any of its members are injured; and in a glaring case like this it needs to be avenged by a verdict which shall punish, the daring violator of its peace.
The defence relied 1st. On the evidence in proof of the plea of justification. 2d. That the plea of justification though unsupported, is not an aggravation of the case, because without that plea the defendant cannot give in evidence the circumstances under which he made the charge. These could not be offered under the general issue of not guilty, which would confine the defendant to a mere denial of the uttering the words. (15 Mass. Rep. 49; 7 Cowen's Rep. 629; 1 Harr. Rep. 503; 2 Strange 1200; Stark. Sland. 410; 2 Stark. Ev. 878.) 3d. That these circumstances are proper to be considered by the jury in reduction of the damages, even though they may not amount to a support of the plea of justification. The very passion and temper of the defendant when he made the charge, instead of being evidence of malice, is ground of alleviation for the charge.