Treat v. Browning

4 Conn. 408

• Court: Supreme Court of Connecticut
• Decided: July 15, 1822
• Status: Published

Opinion

Hosmer, Ch. J.

The plaintiff’s declaration contains three sets of words, of precisely the same import; each of them, in substance, comprising the charge of fornication.

1. One Davis, a witness adduced by the defendants, testified to the speaking, by Catharine Browning, of the words alleged, with the prefatory expression, “If I am not misinformed.” The source from whence the imputation originated, whether from the wicked imagination of the speaker, or by information derived from others, has no materiality on a question, which respects the meaning of the words published. If a person utter of another, “She is a prostitute,” or “If I am not misinformed, she is a prostitute,” the essential charge, in both instances, is constructively the same, or this unhappy consequence must inevitably result, that, by a mode of phraseology, which indicates, that the person speaking had heard the crime imputed, slander might be propagated with impunity. If this were not the legal construction, malice would not desire, nor could it devise, a better shield of protection from suit for the publication of the most wanton calumny. The point in question, has been long and uniformly settled, so that, on this subject, no doubt can or ought to exist. Herle v. Osgood, 1 Vent. 50. Petersborough v. Mordant, 1 Lev. 277. Stich v. Wisedom, Cro. Eliz. 348. Sydenham v. Man, Cro. Jac. 407. Oldham v. Peake, 2 Bla. Rep. 759. Peake v. Oldham, in err. Cowp. 275. Miller v. Miller, 8 Johns. Rep. 74.

2. In mitigation of damages, the defendants offered evidence of general reports, that the plaintiff had committed the alleged crime; which the judge admitted, but as proof only of character. It is now insisted, that by this common fame or reputation, (for it was nothing more) the charge of fornication was proved; and that the restriction, under which the testimony had been received, was incorrect. To this argument, it may be conclusively replied, that, if the evidence went beyond the proof of reputation, it should have been rejected; as there had been no notice of an intended justification. Bailey v. Hyde, 3 Conn. Rep. 463. The discrimination of the court, however, was sound, by admitting reports to have all the efficacy they possess. They are hearsay only, and evincive of character, which alone is susceptible of evidence, founded on the opinions of men; but specific facts are established, by testimony founded in knowledge, and not on common fame. On a critical examination, it is apparent, that the cases which have sanctioned the admission of general reports, have not gone beyond these bounds. Earl of Leicester v. Walter, 2 Campb. 251. - v. Moor, 1 Mau. & Selw. 285.

3. The court rejected testimony offered to prove, in mitigation of damages, that prior to the publication of the words by the defendant Catharine, she had heard them from a Mrs. Browning; and this has given rise to another objection.

The cases, which have been decided on this subject, do not harmonize; but the preponderance of the determinations, in my judgment, is against the admission of the proffered testimony. In Leister v. Smith, 2 Root 24. hearsay was admitted in mitigation of damages; but from the very brief report of the case, comprising neither the argument, the ground of decision, nor the citation of any authority, it was, obviously, too little considered, to establish a doctrine of great practical importance. And in Morris v. Duane, 1 Binn. 90. in a case at Nisi Prius, before Ch. J. Tilghman, it was adjudged, that in mitigation of damages, the defendant might prove, that he did not originally devise a libel, of which he was the publisher. On the other hand, in Miller v. Spencer, 1 Holt 534. evidence of the above description, offered by the defendant, was repelled by Ch. J. Gibbs, who observed, in giving his opinion, that “If an action be brought against A. for calling B. a thief, it is no defence for A., under the general issue, to prove, that he was told so by C. A. is answerable for the full measure of his slander.” To the same effect was the determination in Wolcott v. Hall, 6 Mass. Rep, 514.; and in assigning the reasons, it was said, by Parsons, Ch. J.: “The plaintiff could have no notice from the pleadings to meet this evidence; and when regularly seeking redress for an injury from the defendant, he might be overwhelmed by particular scandal, which could not be traced to any author; or, if it could, might be disproved.” In Kennedy v. Gregory 1 Binn. 85. the same opinion was embraced, by two judges out of three, although from the special circumstances of the case, the testimony was admitted. “I challenge,” said Smith, J. “ingenuity to point out one evil which would result from such evidence being given as matter of justification, (without notice,) which would not follow, to almost the same degree, were it allowed in mitigation of damages;" and I am incapable of resisting the same conclusion.

When I consider the case on principle, I am strongly impelled to the opinion, that the offered testimony was rightly rejected. The argument for its admission proceeds on the ground, that the evidence, would diminish the presumption of malice, and of consequence, lessen the damages. It is an indisputable truth, that evidence, which falls short of a justification, may be competent to mitigate damages; and that to this end, such facts and circumstances as show a ground of suspicion, not amounting to actual proof of guilt, are admissible in evidence. Knobell v. Fuller, Peake's Evid. 287, 8. But the case supposed is not the one on trial; for the declaration of Mrs. Browning, which occasioned one of the defendants to publish the words in suit, are not “facts or circumstances, which show a ground of suspicion,” within the meaning of the above determination. It likewise, must be admitted, that facts, which tend to diminish the presumption of malice, are sometimes competent proof; and by the defendant it is imagined, that they always are; but this supposition is evidently unfounded. Malice, undoubtedly, is an essential ingredient in the action of slander; and, in all cases, where the degree of this property of the mind appears in evidence, it will affect the damages. But the question now under discussion, is not what is the effect of evidence, when lawfully admitted; but it is, whether mere hearsay, of which the plaintiff had neither notice, knowledge, nor anticipation, is competent testimony, because, if received, it will lessen the presumption of malice. Common sense and natural justice, speak a very different language. If the defendant had published of the plaintiff, that she was a strumpet; he could not, in mitigation of damages, prove her to be a thief; or if he had charged her with being a procuress, he might not show, that she was a prostitute. So, if arson had been imputed, it would be incompetent testimony, that the plaintiff was a drunkard, or a gambler, or a forger of bills, or a perjured woman. Hilsden v. Mercer, Cro. Jac. 677. Smithies v. Harrison, 1 Ld. Raym. 727. Bull. N. P. 9. Andrews v. Vanduzer, 11 Johns. Rep. 38. Now, in all the cases put, the imputation of criminal mis-conduct, being pointed at a person of notorious profligacy, would be less indicative of malice, or wickedness, (its legal acceptation, Rex v. Oneby, 2 Ld. Raym. 1487.) than if it had been referred to one of irreproachable conduct. It cannot, therefore, be a correct principle, that evidence, which diminishes the presumption of malice, is always admissible. But, that it should be received, when it does not operate as a surprise on the plaintiff, and take him unprepared, is, in my opinion, a rule perfectly rational and just. This principle will impart to a person, who has injured another, by the utterance of slander, all the defence, which can be desired, compatibly with that protection of character, which ought ever to be a primary object; and, on the other hand, it will secure the administration of justice to the plaintiff, who has been maligned, by false and unwarrantable representations.

The case of Maybee v. Avery, 18 Johns. Rep. 352. has been thought to establish a different principle; but the question there decided is misconceived. Under a special notice of justification, evidence which fell short of proving the truth of the words spoken, was permitted to be taken into consideration, in the estimate of damages. The testimony having been legally admitted, it was fit that it should be made effectual, to every legitimate purpose. But the question, in that case, was on the effect of lawful testimony; in this, it is, whether the evidence offered is lawful, and of consequence, admissible. The precise diversity lies between the weight of testimony, and the propriety of its reception; and the object of determination has no unity in the two cases, but a marked and essential difference. Now, that the defendant heard the slander in question from a Mrs. Browning, was not within the issue; nor could have it been anticipated, as the unqualified charge made on the plaintiff was, that she had committed a direct act of fornication. The offered proof was a surprise on the plaintiff, which she could not have been prepared to repel, however repellible it might have been; and the admission of such testimony would evince a wanton disregard of reputation, one of the first of human blessings. It is by far more just, that the defendant Catharine, who made an unqualified charge on the plaintiff, by a direct affirmation, and on her own personal credit, thus virtually assuming the responsibility of it, should, as was very expressively said by Ch. J. Gibbs, “be answerable for the full measure of her slander.”

4. The defendant offered to prove, in mitigation of damages, that before the words charged were spoken, “The plaintiff had frequently left her bed in her father’s house, in the night season, and lodged in a bed with a young man, in an adjacent store; that she had been detected in a wanton and lascivious situation with the same young man, in a secret place in a field among broom-corn; and at another time, in a similar situation on a hay-mow.” I will select one objection only, against the admissibility of the testimony offered. The above facts, by a strongly probable presumption, establish the truth of the words alleged. The forsaking of her own bed, at midnight, and going to that of a young man in an adjacent store, and lodging with him; the wanton and lascivious situation in a corfield, and on a hay-mow, with the young man; lead to the same conclusion. If any thing short of this were intended to have been done in those places of secrecy and suspicious omen, it should have been definitely mentioned. In absence of all explanation, the evidence offered, by a fair and reasonable construction, amounts to a justification of the words, on which the plaintiff’s suit is founded; and without notice, the truth of the charge is not admissible. Underwood v. Parks, 2 Stra. 1200. Bailey v. Hyde, 3 Conn. Rep. 466.

5. Relative to the certificate of Parks, the evidence was rightly received. Between the testimony of the witness, that the character of Bill was below the common level, and that, at a former period, the witness had admitted his reputation to be good, there was no inconsistency. If there had been, the witness should have claimed his privilege of exemption from the testifying in disparagement of himself, and not the defendants have objected to the admission of his evidence.

6. The offer of the defendants subsequent to the propagation of the slander, to name the author of the words spoken, would not, by retrospect, extinguish or lessen the injury perpetrated; and, on no principle, could have been received.

The other Judges were of the same opinion.

New trial not to be granted.