BUCK, J.
The plaintiff brought this action to recover damages which he claims that he has sustained by reason of the defendant defaming his character. In the complaint it is alleged that at the city of Minneapolis on July 13, 1893, the defendant “did, in the presence and hearing of a large number of persons and citizens, falsely and maliciously speak and publish of and concerning the plaintiff the false, scandalous, malicious, and defamatory words following, that is to say: ‘You (meaning the plaintiff) are a damned robber. You (meaning the plaintiff) are a damned thief. You (meaning the plaintiff) and Dennis (meaning one W. H. Dennis) stole from me (meaning the defendant). You (meaning the plaintiff) and Dennis robbed me (meaning the defendant). You (meaning the plaintiff) and Dennis planned together to rob me, and did rob me (meaning the defendant),’ — thereby then and there meaning and intending to charge that plaintiff was a common thief, and that the plaintiff and the said W. H. Dennis had feloniously robbed, stolen from, and otherwise defrauded the defendant.” The defendant, in his answer, alleges that in the year 1887 and 1888 he was having constructed for himself, in the city of Minneapolis, a brick building of great value, known as the “Oneida Building”; and that one W. H. Dennis was the architect and superintendent of construction; [340] and that the contract for doing the brickwork was let to the plaintiff:; and that in the prosecution of the work the defendant was credibly informed, and had reasonable cause to believe, and did believe, that plaintiff, for the purpose of cheating and defrauding the defendant, and with the knowledge of said Dennis, did cause to be made out false and untrue statements of the amount of brickwork pretended to be done and performed by the plaintiff in and about the construction of said building, by which the amount claimed to1 be due and owing to plaintiff from this defendant for work done upon said building was made to appear very much larger than the amount actually due and owing thereon. The defendant in his answer further alleges that while he was quietly walking along the-streets of the city of Minneapolis, at the time of the alleged speaking of the slanderous words, he was accosted by the plaintiff, who-used towards him abusive and threatening words; and that it was in reply to the plaintiff’s charges and accusations that he said to the plaintiff that he (defendant) had been informed and believed that plaintiff, while engaged in the construction of the Oneida Building, had caused to be made out a false statement of the amount of work done by him, and had thus attempted to cheat and defraud defendant, and did, by obtaining more for his work than he was entitled to, cheat and defraud defendant, which acts defendant then-denounced and characterized as robbing and stealing; and that he was also provoked by the wrongful, insulting, and menacing manner and abuse of the plaintiff to use such language at that time,, which was so used by him in the heat of passion, so provoked by the abusive language and acts of plaintiff. We have quoted only a part of the defendant’s answer, but sufficient, however, to-present the main facts for our consideration. The jury found a verdict in favor of the plaintiff for the sum of $5,000. The most material question presented for our consideration is as to whether the amount of damages is excessive. Before discussing that question, however, we will dispose of one or two others raised by the appellant’s counsel.
1. It is contended that it was not competent for the plaintiff to introduce evidence of prior conversations between the parties to show a malicious publication of the slander charged in the complaint. “Slander is defamation without legal excuse published [341] orally, by words spoken, being the object of the sense of hearing.” Newell, Defani. 33. The publication of slander is in itself evidence of malice, but, while it is not a publication when the words used are only communicated to the person defamed, they might in such a case be evidence of malice. Therefore, defamatory words of the same import as those sued upon, where they are repeated on several occasions prior to the time of publishing the defamatory words alleged in the complaint, may be shown as evidence of malice, whether they are addressed to third persons or to the person defamed. Newell, Defam. 331. Such defamatory words cannot, however, be given in evidence as substantive causes of action themselves, where they are not pleaded, but only for the purpose of proving malice on the part of the defamer, and they may be admitted as evidence for the purpose of proving actual malice, and thereby aggravating the damages. Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710.
2. The appellant also assigns as error the fact that the court below, in his charge to the jury, gave the definition of “larceny” and “robbery” as defined in the Penal Code. The plaintiff alleges in his complaint that the defendant called him a “robber” and a “thief.” These words, applied.maliciously by one person to another, in the presence and hearing of third persons, are defamatory and actionable of themselves. Their meaning is apparent on the face of the defamation, and such meaning was neither altered, enlarged, nor restricted by the allegations of the complaint that by such language the defendant intended to charge that plaintiff was a common thief. If the plaintiff intended the latter words as an innuendo to define the meaning of the words “robber” and “thief,” they should be regarded simply as surplusage. It was proper, therefore, for the trial court to give to the jury the definition of “robber” and “thief” as defined by the Penal Code.
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BUCK, J.
The plaintiff brought this action to recover damages which he claims that he has sustained by reason of the defendant defaming his character. In the complaint it is alleged that at the city of Minneapolis on July 13, 1893, the defendant “did, in the presence and hearing of a large number of persons and citizens, falsely and maliciously speak and publish of and concerning the plaintiff the false, scandalous, malicious, and defamatory words following, that is to say: ‘You (meaning the plaintiff) are a damned robber. You (meaning the plaintiff) are a damned thief. You (meaning the plaintiff) and Dennis (meaning one W. H. Dennis) stole from me (meaning the defendant). You (meaning the plaintiff) and Dennis robbed me (meaning the defendant). You (meaning the plaintiff) and Dennis planned together to rob me, and did rob me (meaning the defendant),’ — thereby then and there meaning and intending to charge that plaintiff was a common thief, and that the plaintiff and the said W. H. Dennis had feloniously robbed, stolen from, and otherwise defrauded the defendant.” The defendant, in his answer, alleges that in the year 1887 and 1888 he was having constructed for himself, in the city of Minneapolis, a brick building of great value, known as the “Oneida Building”; and that one W. H. Dennis was the architect and superintendent of construction; [340] and that the contract for doing the brickwork was let to the plaintiff:; and that in the prosecution of the work the defendant was credibly informed, and had reasonable cause to believe, and did believe, that plaintiff, for the purpose of cheating and defrauding the defendant, and with the knowledge of said Dennis, did cause to be made out false and untrue statements of the amount of brickwork pretended to be done and performed by the plaintiff in and about the construction of said building, by which the amount claimed to1 be due and owing to plaintiff from this defendant for work done upon said building was made to appear very much larger than the amount actually due and owing thereon. The defendant in his answer further alleges that while he was quietly walking along the-streets of the city of Minneapolis, at the time of the alleged speaking of the slanderous words, he was accosted by the plaintiff, who-used towards him abusive and threatening words; and that it was in reply to the plaintiff’s charges and accusations that he said to the plaintiff that he (defendant) had been informed and believed that plaintiff, while engaged in the construction of the Oneida Building, had caused to be made out a false statement of the amount of work done by him, and had thus attempted to cheat and defraud defendant, and did, by obtaining more for his work than he was entitled to, cheat and defraud defendant, which acts defendant then-denounced and characterized as robbing and stealing; and that he was also provoked by the wrongful, insulting, and menacing manner and abuse of the plaintiff to use such language at that time,, which was so used by him in the heat of passion, so provoked by the abusive language and acts of plaintiff. We have quoted only a part of the defendant’s answer, but sufficient, however, to-present the main facts for our consideration. The jury found a verdict in favor of the plaintiff for the sum of $5,000. The most material question presented for our consideration is as to whether the amount of damages is excessive. Before discussing that question, however, we will dispose of one or two others raised by the appellant’s counsel.
1. It is contended that it was not competent for the plaintiff to introduce evidence of prior conversations between the parties to show a malicious publication of the slander charged in the complaint. “Slander is defamation without legal excuse published [341] orally, by words spoken, being the object of the sense of hearing.” Newell, Defani. 33. The publication of slander is in itself evidence of malice, but, while it is not a publication when the words used are only communicated to the person defamed, they might in such a case be evidence of malice. Therefore, defamatory words of the same import as those sued upon, where they are repeated on several occasions prior to the time of publishing the defamatory words alleged in the complaint, may be shown as evidence of malice, whether they are addressed to third persons or to the person defamed. Newell, Defam. 331. Such defamatory words cannot, however, be given in evidence as substantive causes of action themselves, where they are not pleaded, but only for the purpose of proving malice on the part of the defamer, and they may be admitted as evidence for the purpose of proving actual malice, and thereby aggravating the damages. Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710.
2. The appellant also assigns as error the fact that the court below, in his charge to the jury, gave the definition of “larceny” and “robbery” as defined in the Penal Code. The plaintiff alleges in his complaint that the defendant called him a “robber” and a “thief.” These words, applied.maliciously by one person to another, in the presence and hearing of third persons, are defamatory and actionable of themselves. Their meaning is apparent on the face of the defamation, and such meaning was neither altered, enlarged, nor restricted by the allegations of the complaint that by such language the defendant intended to charge that plaintiff was a common thief. If the plaintiff intended the latter words as an innuendo to define the meaning of the words “robber” and “thief,” they should be regarded simply as surplusage. It was proper, therefore, for the trial court to give to the jury the definition of “robber” and “thief” as defined by the Penal Code.
It is claimed that the verdict should be set aside for excessive damages. In cases of this kind there are no fixed rules or mathematical standard for measuring damages, and the amount thereof' must necessarily be confided to the sound, careful, deliberate, and reasonable discretion of the jury, but as it has been well said in reference to the jury in such cases: “The law leaves the liberty to find and return such damages as they think right and just; but this [342] is not a wild, unrestrained, communal liberty, to be arbitrarily exercised, but the higher and better kind of liberty, viz. liberty restrained by reason and moderated by justice.” McDonald v. Woodruff, 2 Dill. 244, 248, Fed. Cas. No. 8,770. An action for slander is designed to furnish indemnity, so far as money can do it, for the injury done, and also to vindicate the character of the person wrongfully assailed. A verdict for damages in behalf of the person unjustly defamed serves to prevent repetition of the wrong. The law affords protection against that defamation which attempts to destroy or sully the good name of the people, and it would be a disgrace to the law if it were otherwise. But punishment should not be meted out to the wrongdoer so outrageously exorbitant as to be entirely disproportioned to the injustice done. Human-weakness sometimes finds a fertile soil in trials by jury, where we find the vicious influence of passion, prejudice, partiality, or corruption occasionally bearing fruit through perverted judgment in grossly unreasonable, outrageous, and excessive damages awarded by the verdict. In such cases the court may exercise its judicial discretion without trenching upon the province of the jury, and set aside the verdict, or conditionally reduce its amount. But where the defamatory words spoken are purely those of malice, without any claim of justification or apparent excuse, courts seldom interfere with the verdict of a jury. While the defendant did not justify his acts in speaking the words complained of, and substantially admitted speaking them, he did claim as a defense that the words used were not intended by him or understood by those who heard them to charge the plaintiff with having committed a crime.
While the jury found a verdict in favor of the plaintiff upon the question of defamation, there is ample evidence to show that the defendant, at and prior to the time of the speaking of the defamatory words, thought that he had reliable information that plaintiff and one Dennis had cheated him in the construction of the Oneida block, of which plaintiff was the contractor in doing the brickwork for the defendant. The words complained of had reference to and were intended to characterize this transaction between the parties, which transaction' if true, would not have constituted a crime. Plaintiff himself understood this perfectly well, and testified that he and the defendant had quarreled several times about the matter. He fur[343] ther testified that he had a letter to show what the defendant claimed he stole from him. This letter was produced in evidence, and there is not a charge of larceny or robbery in it, although it plainly states the grievance out of which sprung the defamatory words sued upon. One James Clayton, a witness for plaintiff, who heard the defamatory words spoken, testified, and, among other things, said: “Johnson spoke to me about it. He spoke about his dissatisfaction with Fredrickson’s work, and, when he said that he would not shake hands with a damned thief, I had an idea what he referred to. I did not understand him to mean that Fredrickson had actually stolen some property of his, and carried it away. I did not take it that way. I understood it with reference to their quarrel about the Oneida building, and that is true of all the statements I ever heard Johnson make.” Herman Voght testified to substantially the same. The only other witness for plaintiff was Dennis, and he knew what the charge referred to. While plaintiff testified that there was a large number of persons in the hearing of the defendant at the time he spoke the defamatory words, not one of them was called by plaintiff as a witness to show that they understood the defamatory words in any other sense than did the plaintiff or the witnesses who testified in his behalf. It is true the language of the defendant to the plaintiff was defamatory, without legal excuse, and reprehensible from its repetition on several occasions; yet it does not appeal’ that these words were ever uttered to third persons, or on occasions except when plaintiff was present, and then when defendant was angry about plaintiff’s conduct in their business transactions.
Upon the whole case, we are of the opinion that, in estimating the damages, the jury must have failed to take into consideration some of the mitigating elements to which we have briefly referred, and that the verdict, under the evidence and attending circumstances of the case, is greater than it should have been. The order of the district court denying the motion for a new trial will be reversed, and a new trial granted, unless the respondent file in the district court a remittitur of the sum of $2,000 within 30 days after the mandate from this court shall be filed in said district court. In case such remittitur is filed, the plaintiff may recover judgment upon said ver[344] diet in Ms behalf in the sum of $3,000, and the order of the lower court stand affirmed for that amount.