Clark v. Brown

116 Mass. 504, 1875 Mass. LEXIS 23

• Court: Massachusetts Supreme Judicial Court
• Decided: January 12, 1875
• Status: Published

Opinion

Devens, J.

It is argued for the defendant that, while one may be justly held responsible for slanderous utterances in respect to an innocent person wrongfully defamed, yet that if such person, by some misconduct of his own, has contributed to produce a belief in the truth of the words thus uttered, he cannot complain of the person expressing it; and that, therefore, if the plaintiff wantonly took the property of the defendant as an idle jest or for the purpose of annoyance, the defendant is not liable for saying that he stole the articles, unless he knew that the plaintiff intended to return them, or only took them thus to annoy him. But in order to justify the defendant in the utterance of words otherwise slanderous, it is necessary that the facts proved by him should be coextensive with the charge; and he cannot protect himself from the consequences of having made it by showing that he believed it to be true, even if such belief was induced by misconduct or impropriety on the part of the plaintiff, which fell short of that which he had seen fit to impute. Parkhurst v. Ketchum, 6 Allen, 406, and Watson v. Moore, 2 Cush. 133, 140, are decigive of this point, and the defendant has no ground of complaint in reference to the ruling upon it.

2. The ruling that “ the plaintiff must prove that the defendant used the words alleged, or some of them sufficient to charge the crime of larceny as alleged,” was a ruling that the plaintiff must show that the charge of larceny had been made against him by proof of the words alleged, or some of the words alleged in the declaration, sufficient to impute to him the crime of larceny, as the plaintiff alleged that it had been imputed to him. To meet its requirements, it was necessary to show by evidence that the charge had been made substantially as the plaintiff alleged it to have been made, so far as the words were concerned. If, therefore, words were set out in the declaration descriptive of the slander, and necessary to identify it, those must have been proved in order to show that the defendant had imputed to the plaintiff the crime of larceny, as the plaintiff alleged that he had imputed it. The rule given by the presiding judge was sufficiently favorable to the defendant. Doherty v. Brown, 10 Gray, 250. Payson v. Macomber, 3 Allen, 69, 72.

3. The ruling that the words uttered to Vinton, which constituted the subject matter of the second count," could be used to show malice in the utterance of the words to the plaintiff’s father, which were set forth in the first count, was in accordance with the law as repeatedly decided. Robbins v. Fletcher, 101 Mass. 115. Baldwin v. Soule, 6 Gray, 321. Markham v. Russell, 12 Allen, 573. No damages were to be recovered under the first count for the words used to Vinton; but they furnished evidence of the spirit in which the words set forth in that count were uttered, for the utterance of which alone the plaintiff was there to recover. As no damages were elsewhere recovered for the words uttered to Vinton, there was no reason, therefore, why the plaintiff should not recover for them under the second count. When, however, evidence is given under one count of the utterance of words, which utterance is made the cause of action under another count, it would be highly proper that the jury should be cautioned that the damages under each count should be confined to the injury from the slander charged therein. Pearson v. Lemaitre, 5 Man. & Gr. 700. The defendant requested much more than this, and the ruling asked by him was properly refused.

4. Upon the question whether the defendant should have been permitted to introduce evidence that the plaintiff’s general reputation was bad as to thieving, we are of opinion that its exclusion by the learned judge who presided was erroneous. While there has been much discussion upon the question whether, in actions of this nature, the defendant might show that the general reputation of the plaintiff was bad, and different results have been reached by some of the courts of other states and in England, it is well settled in this Commonwealth that such evidence is admissible in mitigation of damages. Bodwell v. Swan, 3 Pick. 376. Stone v. Varney, 7 Met. 86. Leonard v. Allen, 11 Cush. 241. Parkhurst v. Ketchum, supra. The reason upon which it has been thus held would seem to require the admission of such evidence as to the plaintiff’s general reputation in those respects in which it has been assailed by the alleged slander. The action is for injury to the position and standing of the plaintiff among his fellows by the utterance of slanders tending to degrade him in their estimation, and perhaps expose him to punishment; and the defendant may show that the plaintiff’s general reputation is already bad, with a view of showing that no serious injury can have been inflicted upon him. When, therefore, the plaintiff alleges this injury to have been occasioned by slanders affecting his character in any particular respect, it would fairly tend to mitigate the damages if it were shown that, at the time of the utterance of the slanders alleged, his general reputation in that respect was already bad. As he is expected to be always ready to defend his general character, so also he should be ready to defend it in reference to that matter wherein he alleges it to have been wrongfully assailed. Stone v. Varney, supra. Leonard v. Allen, supra. Wright v. Schroeder, 2 Curtis, 548. M’Nutt v. Young, 8 Leigh, 542. M’Cabe v. Platter, 6 Blackf. 405. Sanders v. Johnson, Ib. 50. Regnier v. Cabot, 2 Gilm. 34, 40.

In Peterson v. Morgan, ante, 350, the offer of the defendant was not to show as an independent fact the general bad character of the plaintiff in those respects which had relation to the charge made against her, but to establish this fact by proof of rumors which had been circulated about the plaintiff as to the offence charged upon her.

Even in some of the courts which have declined to admit evidence of general bad reputation in mitigation of damages, it has been recognized that evidence was admissible of general bad reputation in regard to the point upon which the plaintiff’s character had been assailed. Williston v. Smith, 3 Kerr, 443. Anthony v. Stephens, 1 Misso. 254.

As the exclusion of this evidence is the only error we find in the conduct of the trial, and as it was admissible only upon the question of damages, the plaintiff is entitled to retain his verdict) if he shall elect to have it amended to one for nominal damages; if he shall not so elect, the Exceptions are sustained.