Opinion
No. 3921.
Decided July 6, 1950.
To authorize the finding that a new trial should be granted because of newly discovered evidence it must appear that the evidence is material to the issues joined and its character such as to be admissible under the rules governing the competency of evidence. In an action for slander the defendant may introduce, for the purpose of reducing damages, evidence to show that plaintiff's general character or reputation is bad, but evidence of particular facts tending to establish the plaintiff's reputation is inadmissible.
MOTION for a new trial on the ground of newly discovered evidence filed by the defendant after verdict by jury for the plaintiff of $300 in an action of case to recover damages for libel. On November 13, 1945, defendant published in its newspaper an item stating substantially that a parolee from State Prison, Concord, Percy C. Small, 4 Halstead St., Kittery, appeared in Portsmouth Municipal Court in answer to charges of disorderly conduct and after pleading guilty was sentenced to four months in the house of correction. The plaintiff had been living in Kittery since April 15, 1942, and resided at the above address on the date of publication. A retraction was published by the defendant two days later.
The motion was heard by Wheeler, J. who presided at the trial. In support of its motion defendant introduced the following exhibits: (1) certified copy of records of Municipal Court, Portland, Maine (where plaintiff resided until he came to Kittery) showing that on March 13, 1935, on a plea of guilty to a charge of exceeding the speed limit Percy C. Small was fined $10 and costs, probation for six months; (2) certified copy of records of same court showing that on August 26, 1935, on a plea of guilty to a charge of larceny he was sentenced to three months in jail, probation for two years; (3) certified copy of records of same court to the effect that on June 22, 1938, Percy C. Small was bound over to the September term of the Superior Court after a finding of probable cause on a charge of rape; (4) photostatic copies of items appearing in the Portland Evening Express and the Portland Press Herald on that date relative to said offense; (5) certified copy of records of the Superior Court, Cumberland County, State of Maine, showing under date of September 6, 1938, that he was discharged because no bill of indictment was found against him on said charge of rape.
These were offered to show that plaintiff's reputation in the community was not good and consequently he suffered no damage because of the item published by the defendant. They were offered further to prove that under the doctrine of Rasquin v. Cohen, 92 N.H. 440, defendant was entitled to a new trial because it maintained that plaintiff was asked at the trial if he had committed any criminal offense and answered in the negative.
The Court made the following ruling: "Upon consideration of the evidence offered in support of the defendant's motion for a new trial, the Court finds that on another trial a different verdict will probably be rendered. Motion granted. Verdict set aside and new trial ordered." Plaintiff's exception thereto was allowed and transferred.
Other facts appear in the opinion.
William H. Sleeper, Robert Shaw and Wayne J. Mullavey (Mr. Mullavey orally), for the plaintiff.
Hughes Burns and Donald R. Bryant (Mr. Bryant orally), for the defendant.
Whether justice requires that a new trial should be had upon the ground of newly discovered evidence is a question of fact for the Trial Court. McGinley v. Railroad, 79 N.H. 320, 321; Jackson v. Smart, 89 N.H. 457, 458; State v. Long, 90 N.H. 103, 107. However "it is always the duty of this court to determine as a matter of law whether the evidence on which the trial justice has based his findings is such that those findings can reasonably be made." State v. Long, Id.; Roy v. Chalifoux, 95 N.H. 321, 324.
To authorize the finding that a new trial should be granted under the provisions of R. L., c. 398, s. 1, upon the ground of newly discovered evidence, it must appear, among other requisites, that this evidence is not only material to the issues joined (McGinley v. Railroad, supra), but that it is moreover of such a character as to be admissible under the rules governing the competency of evidence. Delisle v. Smalley, 96 N.H. 58, 59; Sessmer v. Commonwealth, 273 Ky. 40, 45; Deeble v. Stearns, 186 P. (2d.) 173; 39 Am. Jur. 171.
In our opinion the evidence offered by the defendant in support of its motion for a new trial did not meet the latter requirement. This evidence related to particular acts of misconduct on the part of the plaintiff. A defendant in an action for slander may introduce, for the purpose of reducing the damages, evidence to show that the plaintiff's general character or reputation is bad, but evidence of particular facts tending to establish the plaintiff's reputation is inadmissible. True these acts of misconduct and the publicity given to them may have affected his reputation. If they have, then evidence of his reputation alone suffices to show it. Lamos v. Snell, 6 N.H. 413; Pallet v. Sargent, 36 N.H. 496; Knight v. Foster, 39 N.H. 576; Bausewine v. Herald, 351 Pa. 634; Tokmakian v. Fritz, 67A.2d 834; 53 C. J. S. 387; 33 Am. Jur. 269; 1 Wig. Ev. (3d ed.) ss. 70, 209; 43 A.L.R. 887, 890; 130 A.L.R. 854, 858.
The defendant further contends in its brief that the evidence offered in support of its motion for a new trial is also admissible to show "that the plaintiff was not a man whose feelings would be easily wounded. He had been involved in various criminal actions which had received wide publicity. He had not endured the same mental suffering which a man with a spotless reputation and character would endure upon being charged with crime." This evidence it is argued would be admissible to rebut plaintiff's claim of mental suffering. This type of evidence is open to the same objections as renders inadmissible evidence of particular acts of misconduct in mitigation of damages in an action of this type. Curley v. Curtis Publishing Co., 48 F. Supp. 27.
The evidence adduced by the defendant in support of its motion for a new trial not being admissible under the rules governing the competency of evidence it would not be the basis for the granting of a new trial.
Nor was the defendant entitled to a new trial under the doctrine of Rasquin v. Cohen, 92 N.H. 440. The record in the case does not support defendant's contention that plaintiff was asked if he had committed any criminal offense and that plaintiff answered that he had not. The most that can be said is that plaintiff did not give direct answers to the not too direct questions of defendant's counsel on that subject. There is no evidence from which the Trial Court could find that plaintiff testified falsely on a material issue and that his testimony was dishonest so as to entitle it to a new trial under the doctrine of the Rasquin case.
The order must therefore be
Judgment on the verdict.
All concurred.