Bassell v. . Elmore

48 N.Y. 561

• Court: New York Court of Appeals
• Decided: May 5, 1872
• Status: Published

Opinions

The defendant received hard measure of justice at the hands of the jury, but for this he has no remedy here. We can review only errors of law, and of these the defendant claims there were several at the trial.

The second count in the complaint was undoubtedly defective, because it did not allege any special damage which has been recognized as sufficient in law to uphold an action like this. It simply alleged that the slanderous charge injured plaintiff in her good name, and caused her relatives and friends to slight and shun her, to her damage $2,000. (Beach v. Ranney, 2 Hill., 309; Terwilliger v. Wands, 17 N.Y., 54; Wilson v. Goit,17 N.Y., 442.) There was, then, but one good count in the complaint, and the defendant's counsel objected on the trial that the plaintiff could therefore prove but one utterance of the slanderous charge. The objection was not well taken. It is now well settled that, under a single count in the complaint, the plaintiff may show a repetition of the same slanderous charge even down to the trial, not for the purpose of sustaining the action, but for the purpose of showing the degree of malice, and thus enhancing the damage which the jury is authorized to award the plaintiff. (Johnson v. Brown, 57 Barb., 118; Thorn v. Knapp, 42 N.Y., 474;Titus v. Sumner, 44 id., 266.)

Ordinarily, the repetition of defamatory language by another than the first publisher is not a natural consequence of the first publication, and, therefore, generally the loss resulting from such repetition, does not constitute special damage, and is not attributable to the first publisher. This rule results from the principle that every one who repeats a slander is responsible for the damage caused by such repetition, and such damage is not the proximate and natural consequence of the first publication of the slander. But if the slander be repeated under such circumstances as to be justifiable and innocent, and not to give a cause of action against the one repeating the same, then the first publisher thereof is generally responsible for the damage caused by such repetition. (Terwilliger v. Wands,17 N.Y., 54; Fowles v. Bowen, 30 id., 20; Ward v. Weeks, 7 Bing., 211.)

These rules were not violated on the trial of this action. Madison Elmore was permitted to testify that the slanderous charge was uttered to him by the defendant. After the close of plaintiff's case, defendant's counsel moved to strike out this evidence on the ground that the charge was made in the absence of Hill, who stood in loco parentis to the plaintiff, and, hence, that no special damage could have resulted from it. The court denied the motion on the ground that the evidence was proper on the question of malice. I think the ruling of the court was correct. The evidence was not competent to sustain the action. But this was an action in which punitive damages could be given, and, hence, with the view of enabling the jury to measure out the proper punishment due to the defendant, it was competent for the plaintiff to show the degree of malice by which he was actuated; and, hence, within the cases above cited, it was competent to show a repetition of the same slanderous charge. It was peculiarly competent to give this evidence, as the defendant claimed on the trial that he uttered the defamatory words under such circumstances as made them privileged communications, and the publication justifiable and innocent.

The special damage alleged and proved was sufficient to sustain the action. The plaintiff had for many years lived with her uncle, Mr. Hill, as a member of his family. In consequence of this charge, she was refused permission to remain in his family, and was obliged to seek a home elsewhere. Thus special damage was shown within any of the decisions upon the subject.

It is further claimed, on the part of the defendant, that the conversations in which the charge was made were privileged. The defendant in his conversation with plaintiff's uncle, Hill, made the charge and said he could prove it, and that he was anxious to prove it. He professed to speak of something of which he had positive knowledge. He was not searching for information; he was not engaged in advising his son upon the subject of his difficulty with the plaintiff, nor in advising Hill of his duty to the plaintiff. Even if he was engaged in an attempt to settle the matter between plaintiff and his son, he was not privileged, within any case which has come to my attention, to blacken her character in such emphatic terms.

Having thus examined all the errors alleged, I reach the conclusion that the judgment should be affirmed, with costs.