Webb v. Gray

62 So. 194, 181 Ala. 408, 1913 Ala. LEXIS 186

• Court: Supreme Court of Alabama
• Decided: April 10, 1913
• Status: Published

Opinion

ANDERSON, J.

Charge A, given at the plaintiff’s request, was directed at defendant’s plea of justification, and was not objectionable for assuming the existence of damages to tbe plaintiff because of the defamation, for the reason that in actions of libel and slander it is not necessary that the plaintiff either allege or prove any special damage. The words charged in this case are actionable per se (Code of 1907, § 3748), and it is settled that, “if the defamatory charge is actionable per.se, the plaintiff is entitled to at least some damages; the law presuming damages.” — 25 Cyc. pp. 453, 531, 539. “When words are slanderous in themselves, the right to damages follows as a consequence from speaking in a slanderous way, because it is the incalculable tendency of slander to injure the person slandered, in his reputation, profession, trade, or business. It would frequently be difficult to prove any pecuniary injury from slander, and always impossible to establish its full extent. * * * Therefore, when words are actionable in themselves, the law implies damages.” — Johnson v. Robertson, 8 Port. 489; Newell on Defamation, etc., p. 779. The case relied upon by counsel for appellant, namely, O’Neal v. McKinna, 116 Ala. 606, 22 South. 905, was an action for malicious prosecution, and the charges pointed out as bad assumed that the plaintiff suffered wounded feelings and injured reputation. The court said: “Charges C and D, given for the plaintiff, would therefore have been properly given if they had not assumed the fact, instead of leaving it to the jury to determine, that the plaintiff had suffered wounded feelings and injured reputation. In fact, we see no evidence to show injured reputation.” The law does not presume damages in an action for malicious prosecution. — 25 Cyc. p. 60. These principles of law clearly distinguish the case at bar from the O’Neal Case, since in this case the law presumes or implies damages, while in the action for malicious prosecution damages are not presumed but must be proven.

It is next insisted that charge A, given for the plaintiff, was bad for the reason that it authorized the jury to consider a failure to sustain the plea, setting up, the truth of the words spoken in bar of the action, as an aggravation of the damages, whether the plea was or was not interposed in good faith. Under our system- of pleading, in actions of this nature, the defendant may not only plead specially the truth of the words spoken in bar of the action, but may also- give in evidence, under the general issue, the truth of words spoken or written, or the circumstances under which they were written or spoken in mitigation of the damages. Section 3746 of the Code of 1907; Schuler v. Fisher, 167 Ala. 184, 52 South. 390; Ferdon v. Dickens, 161 Ala. 181, 49 South. 888. “When the truth is pleaded in justification, failure to sustain the plea by proof may be considered by the jury as an aggravating circumstance in estimating damages. But the jury should be guided by the motive with which the plea is made; hence if it is interposed in good faith, under an honest belief in the truth of the matter published and with reasonable grounds for such belief, it cannot be regarded as an aggravation beyond the real injury sustained by the plaintiff. Indeed, it has been held that if a plea of justification is made in good faith, and evidence is introduced, honestly for the purpose of supporting it, such evidence should be considered by the jury in mitigation of damages, although it is insufficient to prove the truth of the plea.” — 25 Cyc. pp. 416, 417, and cases cited in notes 39 and 40. Indeed, this seems to be the rule which obtains in all the states except Alabama and perhaps two others. The Oregon and New York statutes, as to pleas in justification and the right to mitigate damages in actions of libel and slander are, in effect, the same as ours, and were enacted for the same purpose, that is, to remove, to a certain extent, the harshness of the common law, so as to permit the jury to consider the facts adduced in mitigation of damages, other than actual or real, if they tend to show good faith or belief in the truth of the words spoken, although said facts do not sustain the plea of justification to the satisfaction of the jury. But when there is a total failure of proof tending to establish the truth of the charges, and the circumstances evince malice in reiterating the slander, or such reckless disregard of the consequences of interposing such a plea which is not supported by evidence to show that the defendant had a probable or reasonable belief of the truth of same, the jury may look to the interposition of such a plea as a reiteration of the slander and as an aggravation of damages. A charge similar to this one has been characterized by a most respectable court as a “legal monstrosity.” It penalizes an unsuccessful defense, whether made in good faith or not, and notwithstanding the law authorizes the facts proven to go in mitigation of damages under the general issue, although not sufficient to establish the plea of justification. — Upton v. Hume, 24 Or. 420, 33 Pac., 810,. 21 L. R. A. 493, 41 Am. St. Rep. 863; Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360. We therefore hold that the trial court erred in giving charge A at the request of the plaintiff.

The trial court, however, found justification for giving said charge in the cases of Hereford v. Combs, 126 Ala. 369, 28 South. 582, and Poole v. Devers, 30 Ala. 672, wherein charges similar to this one were approved. These cases cite and rely upon the case of Robinson v. Drummond, 24 Ala. 174, wherein a similar charge was approved. It must be observed, however, that the court justified- said charge in said Robinson Case upon the theory that the facts shown to justify the slander could not be shown under the general issue in mitigation of the damages. Says the court, speaking through Chilton, C. J.: “If the evidence in support of the justification only goes, part of the way, and fails to make it good, it is disregarded, as it is unjust to allow a defendant to obtain any advantage by offering to- prove more than he can, and this, too, by proof which could only be introduced under his false plea, and would have been rejected under the general issue.” It may be that section 3746 was in the Code of 1852, and that the case of Robinson v. Drummond, supra, was decided after the adoption of the Code of 1852; but it is manifest that said section was overlooked, if in force, as the opinion expressly proceeds upon the idea that the evidence offered in support of the plea of justification was not admissible under the general issue in mitigation of damages. The cases of Hereford v. Combs, 126 Ala. 369, 28 South. 582, and Pool v. Devers, 30 Ala. 672, are expressly overruled, in so far as they approve charges similar to the one in question.

The trial court gave the defendant considerable latitude in proving statements to him, not only by Jim Lockridge, but by others, as to the relationship- and intercourse between the said Lockridge and the plaintiff, and whether the court did or did not err in this report matters not, as said ruling was in favor of the appellant.

The court did not err, however, in declining to let the defendant prove the statements made by Lockridge to third persons as to his intercourse with the plaintiff, or his acts and conduct generally in leaving the cohimunity, or the reasons he may have given for doing so. This was hearsay evidence and was in no way binding upon the plaintiff, as the statements were not made in her presence and were not part of the res gestae. While the statute authorizes the circumstances under which the words were spoken or written to be given in evidence, under the general issue, in mitigation of damages, it does not have the effect of abrogating the rule of evidence applicable in other cases. “The rules governing the admissibility of evidence generally are applicable to actions of libel and slander. Thus the evidence must be relevant, and must not come within the prohibition of the hearsay rule.” — 25 Cyc. 492. “It is held that the defendant cannot offer in evidence communications of the same or similar defamatory matter by third persons, or recovery or pendency of suit therefor, as tending to show that whatever injury plaintiff had sustained to his reputation was not caused by defendant alone, or that he had received from others an amount which wonld go to compensate him for his injuries.” — 25 Cyc. 506; Newell on Def., etc., p. 899, § 76. As we read the case of Fuller v. Deason, 31 Ala. 654, it is in conformity with and not opposed to the foregoing rule. It seems that evidence is admissible as to plaintiff’s general reputation with reference to the matter charged in the defamation, or his general reputation as a man of moral worth, without restriction to the particular feature in respect to which his character had been assailed. But the evidence must relate to the character or reputation of the plaintiff as fixed before the publication of the words complained of. — 25 Cyc. 418.

In an action of slander, the general bad character of plaintiff may be given in evidence, under the general issue, in mitigation of damages, notwithstanding the defendant may also have interposed the plea of justification.- — Pope v. Welsh, 18 Ala. 631. This rejected evidence of the defendant, however, as to the sayings, acts, and conduct of Jim Lockridge, was not the proper way of proving the plaintiff’s general character or the truth of the words constituting the slander, or that the defendant believed them to be true, unless the statements were made to him or he had knowledge of the acts and conduct of Lockridge when he uttered the words constituting the slander.

In discussing the rule of evidence in mitigation of damages when malice or a want of probable cause is involved, Mr. Elliott, in his work on Evidence (volume 3, par. 2458), says: “There are various matters which it is said may be proven in mitigation of damages. We do not understand this expression to mean that any of the matters ought to, or can, deprive plaintiff of his right to recover such damages as he has actually suffered, blit rather that they may wholly or presently remove the presumption of malice which will thereby be indulged, and will therefore relieve the defendant from the imposing of punitive damages. It has been held that a defendant may prove in mitigation of damages that he received letters purporting to have been written by reputable persons, charging the plaintiff with certain wrongful acts; that these letters Avere in fact" forgeries; and that he, believing them to be genuine, was imposed upon and induced to publish the libel complained of, in the belief that it avus true.” Mr. Elliott takes the position that Avhere the element of good faith is involved, and the defendant is attempting to shoAV his good faith, he may do so by proving the statement to him of third persons, and that this evidence is not hearsay, but is original evidence; and he very clearly announces the rule out of which the distinction grows. Where the question is not Avhether the statements are true, but Avhether they were made by a certain person, the man to AAdiom they were made may testify that they were made, and the evidence is original evidence for the reason that he is as competent to testify as to what, was said as the man is who made the statements. If the truth or falsity of the words is involved, and that is an issue before the court, the man wjho heard the remarks, of course, could not testify as to their truth or falsity, because he has no knowledge thereof. Only the man who made the statements may testify in such cases without violating the hearsay rule, unless, of course, the statements are in the nature of admission by a party to the cause. — Elliott on Evidence, §§ 322-324. In order, therefore, to introduce the letters purporting to be from the plaintiff to Jim Lockridge, as admissions by her and in support of the truth of the alleged slander, the proof should connect the plaintiff with the same other than by the mere hearsay evidence of Lockridge, or of the fact that they were in a lady’s handwriting, purported to be signed in her first name, and were handed to said Lockridge by the plaintiff’s nephew, who lived in the same house with her; but, as an element of good faith on the part of the defendant was involved, he had the right to show that the letters were shown him- by Lockridge and to prove the contents and 'circumstances connected with the exhibition of same to him, not as proof of the charge or in mitigation of actual damages, but as a circumstance to negative malice and to show that he had good reason to believe the statements he made, both when making them and when reiterating them by his plea of justification, and which could be considered in mitigation of punitive damages. For this purpose they were original, as distinguished from secondary or hearsay, evidence. The defendant in offering this evidence limited it to the extent of showing good faith and in mitigation of damages.

The plaintiff also laid a sufficient predicate to prove the contents of the letters, as Jim Lockridge, who was last seen with them, was out of the state.

The defendant also had the right to show by the witness Posey the contents of the letter, which he claims was delivered to Lockridge by the plaintiff’s nephew in the store of and in the presence of the defendant, as this was corrobative of the defendant’s improperly rejected evidence that Lockridge received and showed him the letter.

The trial court, however, did not err in excluding what transpired between Posey and Jim Lockridge after they left' the defendant and went to see Ur. Yansant, or in excluding what transpired between the said Lock-ridge and Ur. Yansant as to the medicine.

The evidence as to the business relations between the defendant and the Lockridges, and what transpired as to purchasing the Lockridge interest by the defendant, was admissible to show that defendant had a motive forgetting rid of Jim and that the report was maliciously started. This evidence may be weak, but-its probative force was for the jury.

There was no error in so much of the oral charge as is insisted upon in brief of appellant’s counsel, and which is based upon assignment of error number 30. Nor in the refusal of defendant’s requested charge 7. Charge 6 was manifestly bad.

ft was a question for the jury to determine whether oi- uofc the plaintiff was entitled to recover punitive damages, and the trial court did not, therefore, err in refusing defendant’s requested charge 12.

There was no error in refusing charges-14, 16, and 17, requested by the defendant.

The amendment of the complaint by adding counts 5 and 6 was permissible. — Section 5367 of the Code of 1907.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.