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Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 2) online

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The decisions upon this point are, however, not in harmony.
In some jurisdictions it is held that such a plea is evidence of
actual malice, and a high aggravation of the offence.^^ So, in

" Davis V. Starrett, 97 Me. 568, 58 Blackf. 50; Byrkct v. Monohon, 7

Atl. 516. Bluckf. 83; Shortly v. Miller, Smith,

^ Massachusetts: Watson v. Moore, 2 395.

Cush. 133, 141. West Virginin: Sweeney v. Baker, 13

New York: McLaughlin v. Charles, W. Va. 158, 31 Am. Rcj). 757.

60 Hun, 239, 14 N. Y. Supp. 608. England: Chalmers v. Shackell, 6

" 12 Conn. 262. C. & P. 475.

" 14 Ohio, 418; ace, Saunders v. "■ Braden v. Walker, 8 Humphreys,

Baxter, 6 IIei.sk. (Tenn.) 309. 34.

■"^ 2 Camp. 72. '^'^ Alabama: I'ool v. Dcvers, 30 Ala.

•*" Indiana: Sanders v. Johnson, (i 072.



§ 447 PLEA OF JUSTIFICATION 867

Vermont, it is competent for the jury, on the question of dam-
ages, to take into consideration the fact that the defendant, in
his pleadings, has repeated and attempted to justify his state-
ments.^^ On the other hand, in other jurisdictions, such a
plea, interposed in good faith, is no ground for increasing the
damages.^'* As just stated, we think the last rule is the true
one, and that the plea should not, as matter of law, carry with
it any effect of aggravation. The necessity of such a con-
sequence may prevent an honest defence. As was said, in
Rayner v. Kinney,''^ the motive with which the justification is
pleaded, should be ''for the consideration of the jury. If they
find that it was done with the intention to injure the plaintiff,
they may rightly consider it an aggravation of the damages ; but
where no wrongful intention is found, there is no just ground for
the punishment of the defendant." In New York, the severer
rule formerly obtained,^^ although, before the Code of Pro-
cedure, it had perhaps been modified by a limitation of the
increase of the damages to the extent of the injury sustained
by the repetition. ^^ But it would seem to have been wholly
superseded by that act, which permits the defendant, in his
answer, to allege both the truth of the matter charged as de-
famatory, and any mitigating circumstances, and whether he

Colorado: Downing v. Brown, 3 Colo. England: Simpson v. Robinson, 12

571. Q. B. 511.

Georgia: Henderson v. Fox, 83 Ga. ^* Cavanaugh v. Austin, 42 Vt. 576.

233. ^^ Connecticul: Ward v. Dick, 47

Louisiana: Weil v. Israel, 42 La. Ann. Conn. 300.
955, 8 So. 826. Illinois: Cummerford v. McAvoy, 15

Maine: Sawyer v. Hopkins, 22 Me. 111. 311; Sloan v. Petrie, 15 111. 425;

268. Thomas v. Dunaway, 30 111. 373; Cor-

Maryland: Coffin v. Brown, 94 Md. bley v. Wilson, 71 111. 209.
190, 50 Atl. 567. Indiana: Murphy v. Stout, 1 Ind.

Massachusetts: Jackson v. Stetson, 15 372.
Mass. 48; Clark v. Binney, 2 Pick. 113, New Hampshire: Pallet v. Sargent, 36

121. N. H. 496.

Mississippi: Doss v. Jones, 5 How. Ohio: Rayner v. Kinney, 14 Oh. St.

158. 283, overruling the dictum contra in

Pennsylvania: Gorman v. Sutton, 32 Dewit v. Greenfield, 5 Oh. 225.
Pa. 247. Canada: Corridan v. Wilkinson, 20

South Carolina: Burckhalter v. Cow- Ont. App. 184.
ard, 16 S. C. 435. " 14 Oh. St. 283.

Tennessee: Wilson v. Nations, 5 Yerg. ^ Fero v. Ruscoe, 4 N. Y. 162.

211. " Fulkerson v. George, 3 Abb. Pr. 75.



868 MALICIOUS TORTS § 448

prove the justification or not, to give in evidence the mitigat-
ing circumstances.^^ And it is now held by the New York
Court of Appeals, that where the defendant, in an action of libel
or slander, pleads under this section, facts both in justification
and mitigation, the allegations in justification, though unproved,
are no longer evidence of malice to be considered by the jury,
or taken as enhancing the plaintiff's damages. ^^ In every
jurisdiction, however, the malicious filing of a plea in justifica-
tion may be considered in aggravation of damages, since it
furnishes a ground for exemplary damages. "° So, too, the
filing of a plea in justification merely to uphold a newspaper
policy of insisting upon the truth of every statement appearing
in the defendant's columns." That an objectionable pleading
was withdrawn was held in Illinois '- not to prevent its being
used to enhance the plaintiff's recovery; but the opposite result
was reached in California.'^ In Lamb v. West,'^ where the de-
fendant's attorney conducted the case with obvious malice to-
ward the plaintiff, the latter was held entitled to punitive dam-
ages.

§ 448. Mitigation.

Since the damages for defamation are in general non-
pecuniary, evidence may be given in mitigation of compensatory
damages as well as of exemplary damages. As in other cases,
however, nothing should be received in mitigation of compen-

^ N. Y. Co. Civ. Proc, § 535; Bush New York: Marx ;;. Press Pub. Co.,

V. Prosser, 11 N. Y. 347. 134 N. Y. 561, 31 N. E. 918.

6!* Klinck V. Colby, 46 N. Y. 427; OrejoM; Shartle r. Hutchinson, 3 Ore.

Decker v. Gaylord, 35 Hun, 584. The 337.

remarks, therefore, of Mr. Justice E. Rhode Island: Tillinghast v. McLeod,

D. Smith, to the contrary, in deUver- 17 R. I. 208, 21 At!. 345.

ing the opinion of the Supreme Court Utah: Lowe v. Herald Co., 6 Utah,

of New York, in Bennett v. Matthews, 175.

04 Barb. 410, are at variance with the " Kansas City Star Co. v. Carlisle,

settled law. lOS F(>d. 344, 47 C. C. A. 384, 393.

'» California: Pink v. Catanich, 51 " Beasley ;;. Meigs, 16 111. 139.

Cal. 420; Dauphiny v. Buhne, 1.53 Cal. " Morris v. La.-hinan, OS Cal. 109, 8

757, 96 Pac. 880; Davis v. Hearst, 110 Pac. 799.

Pac. .530, and cases cited. '< 15 N. S. W. L. Rep. 120; ace,

Illinois: Spencer v. McMasters, 16 Struthers v. Peacock, 11 Phila. (Pa.)

111. 405. 287.

Missouri: Browning i'. Powers, 38
S. W. 943, 946.



§ 448a DISPROOF of actual malice 869

satory damages unless it tends to show what those damages
actually were. When actual damages are once ascertained
they cannot be mitigated; though they are to be determined
in view of all mitigating circumstances.^'' The case of exem-
plary damages is of course different; and there any circum-
stance which has a bearing on the defendant's malice may be
shown.

Thus where compensatory damages only are to be given,
defendant cannot, to mitigate damages, show that he is poor.^^
Nor may he show that the plaintiff has already brought suit
for libel against another defendant who published an identical
statement." Nor should the good faith of the defendant be
shown to affect compensatory damages, ^^ though on this point
the authorities are in conflict."^ But this conflict may be in
great part explained by the fact that exemplary damages were
recoverable (though this fact is not always brought out), and
such evidence is clearly admissible in mitigation of exemplary
damages. So, where it appears that the defendant was drunk
when he uttered the words, this may go in mitigation of dam-
ages as tending to rebut malice.^" But where it is proved that
he repeated the charge both when drunk and sober, on public
and private occasions, his being drunk at the particular time
alleged is no reason for abating the damages.^^ The insanity
of the defendant may be shown. ^- It has apparently been al-
lowed as a complete defence,^^ but that is not to be approved
in a civil suit.

§ 448a. Disproof of actual malice.

Damages may be mitigated by disproof of actual malice.^"*

" Keller v. American B. P. Co., 140 ™ See the cases cited in the following

App. Div. 311, 125 N. Y. Supp. 212. sections.

^^ Harter v. Whitebread, 38 Pa. Super. *" Indiana: Gates v. Meredith, 7 Ind.

Ct. 10. 440.

^^ United States: Printing Assoc, v. England: Wakelin v. Morris, 2 F. &

Smith, 55 Fed. 240, 5 C. C. A. 91. F. 26.

New York: Palmer v. Matthews, 1G2 " Howell v. Howell, 10 Ired. (N. C.)

N. Y. 100, 56 N. E. 501 ; Palmer v. New 84.

York News Pub. Co., 31 App. Div. 210, ^^ Brown v. Brooks, 3 Ind. 518;

52 N. Y. Supp. 539. Yeates v. Reed, 4 Blackf. 463.

" Schattler v. Daily Herald Co., 162 ^^ Bryant v. Jackson, 6 Humph.

Mich. 115, 127 N. W. 42, 17 Det. L. N. (Tenn.) 199.

481. ^* United States: Erber v. Dun, 12



870



MALICIOUS TORTS



§448b



The damages so mitigated are regularly, and in some jurisdic-
tions solel}^,^^ punitive; but there are cases holding the defend-
ant's attitude of mind relevant upon the plaintiff's mental suf-
fering and, accordingly, upon his actual damages.*^ In an
action for Ubel, it is proper to admit evidence of what was said
by the defendant in directing the printing, in order to disprove
actual mahce in the publication, and to influence the ques-
tion of damages. The terms and conditions on which the de-
fendant requested the printing and publication to be done, and
on which the witness agreed to do it, are admissible in evidence
as pertinent and material in respect to the motives of the de-
fendant in procuring the publication complained of .^^

§ 448b. Imperfect privilege.

That the charges were made in good faith to a person inter-
ested in receiving the information may be shown in mitiga-



Fed. 526, 4 McCrary, 160; Palmer v.
Mahin, 120 Fed. 737, 57 C. C. A. 41.

Arkayisas: Patton v. Cruce, 72 Ark.
421, 81 S. W. 380, 65 L. R. A. 937, 105
Am. St. Rep. 46.

California: Lick v. Owen, 47 Cal.
252.

Delaware: Donahoe v. Star Pub. Co.,
4 Pennew. 166, 55 Atl. 337; Todd v.
Every Evening Printing Co., 6 Pennew.
233, 66 Atl. 97.

Iowa: Fountain v. West, 23 Iowa, 9,
92 Am. Dec. 405.

Louisiana: Germann v. Crescioni, 105
La. 496, 29 So. 968; Levert v. Daily
States Pub. Co., 123 La. 594, 49 So.
206.

Michigan: Davis v. Marxhausen, 103
Mich. 315, 61 N. W. 504.

Minnesota: Quinn v. Scott, 22 Minn.
456.

Missouri: Jones v. Murray, 167 Mo.
25, 06 S. W. 981.

Nevada: Thompson v. Powning, 15
Nev. 195.

New York: Hawk i;. American News
Co., 33 N. Y. Supp. 848, 24 N. Y.
Civ. Proc. 2.55; Collis v. Press. Pub.
Co., 68 App. Div. 38, 74 N. Y. Supp.
78.



Ohio: Henn v. Horn, 56 Ohio St. 442,
448, 47 N. E. 248.

Pennsylvania: Updegrove v. Zimmer-
man, 13 Pa. 619.

Wisconsin: Adamson v. Raymer, 94
Wis. 243, 68 N. W. 1000.

** United States: Times Pub. Co. v.
Carlisle, 94 Fed. 762, 36 C. C. A. 475;
Kansas City Star Co. v. Carlisle, 108
Fed. 344, 47 C. C. A. 397; Post Pub. Co.
V. Butler, 137 Fed. 723, 71 C. C. A. 309.

Arkaiisas: Murray v. Galbraith, 95
Ark. 199, 128 S. W. 1047.

Kentucky: Nicholson v. Rust, 21 Ky.
L. R. 645, 52 S. W. 934.

New Jersey: Knowlden v. Guardian
Printing, etc., Co., 69 N. J. L. 670, 55
Atl. 287; Neafie v. Hoboken P. & P.
Co., 75 N. J. L. 564, 68 Atl. 146.

New York: Robinson v. Evening Post
Pub. Co., 39 App. Div. 525, 57 N. Y.
Supp. .303.

Wisconsin: Pellardis v. .Journal Print-
ing Co., 99 Wis. 1.50, 74 N. W. 99.

** Massachusetts: Markham v. Rus-
.soll, 12 Allen, 573, 90 Am. Dec. 169.

Michigan: Detroit Daily Post Co. v.
McArthur, 16 Mich. 447; Scripps v.
Reilly, .38 Mich. 10.

»7 Taylor v. Church, 8 N. Y. 452.



§ 448c BELIEF IN TRUTH OF CHARGE 871

tion, though the circumstances were not such as to make the
communication privileged in the technical sense. Thus, the
fact that charges against an officer of state or candidate for
office were made from a genuine desire to enlighten the public
will be received in mitigation of damages.^^ A defendant has
been allowed to prove that the charge of unchastity was made
to a young man who seemed to be courting the plaintiff.^^
The circumstance that a reflection on the plaintiff's commercial
credit was telegraphed in confidence by a company engaged in
supplying information on the topic goes in mitigation.^'' One
whose defamation was uttered in order to give warning against
an undesirable neighbor is entitled to some leniency from the
jury; ^^ and in assessing damages the fact that the defendant
did not seek the interview may properly be considered.^-

§ 448c. Belief in truth of charge.

Matters which induced a belief of the truth of the charge in
the defendant may be shown to disprove malice; ^^ for example,
that the plaintiff was seen in a suspicious situation, ^^ or that
his conduct was equivocal. ^^ Where the defendant accused the
plaintiff of unchastity, evidence is admissible of an increase in
the plaintiff's size resembling pregnancy, which in fact was from
another cause.^^ In an action for a libel the receipt by the de-

^ Illinois: Rearick v. Wilcox, 81 111. Kentucky: Evening Post Co. v. Rhea,

77. 31 S. W. 273, 26 Ky. L. Rep. 375.

Maryland: Negley v. Farrow, 60 Md. Pennsylvania: Petrie v. Rose, 5 Watts

158, 45 Am. Rep. 715. & S. 364.

Michigan: Bailey v. Kalamazoo Pub. Sickra v. Small, 87 Me. 493, 33 Atl.

Co., 40 Mich. 251; Bronson v. Bruce, .59 9, 47 Am. St. Rep. 344, contra, is per-

Mich. 467, 26 N. W. 671, 60 Am. Rep. haps best to be explained on the theory

307. that punitive damages were on prin-

*' Blocker v. Schoff, 83 Iowa, 265, ciples apart from this topic disallowed.

48 N. W. 1079. «^ Haywood v. Foster, 16 Ohio, 88.

'" Jeffras v. McKillop, 2 Hun, 351. ^^ New York: Spooner v. Keeler, 51

" Beggarly v. Craft, 31 Ga. 309, 76 N. Y. 527.

Am. Dec. 687. Ohio: Wilson v. Apple, 3 Ohio, 270;

»2 Davis V. Sladden, 17 Ore. 259, 21 Reynolds v. Tucker, 6 Oh. St. 516.

Pac. 140. Pennsylvania: Minesinger v. Kerr, 9

" Illinois: Moore v. Mauk, 3 111. Pa. 312.

App. 114. Shepard v. Merrill, 13 Johns. 47^,

Kansas: Miles v. Harrington, 8 Kan. reached an opposite result partly, it

425. would sroin, on a point of pleading.

96 Doe V. Roe, 32 Hun, 628.



872 MALICIOUS TORTS § 448d

fendant of forged letters containing statements upon which
the charge was founded may be shown in mitigation; ^" and so,
too, evidence has been admitted that the charge was founded
on information obtained from the journal of Congress ^^ or
from the poUce ^^ or from newspapers. ^*'° And generally if the
defendant can establish his bona fide belief in the truth of the
charge this may be shown in mitigation; ^^^ though in some
jurisdictions it cannot be shown in mitigation of actual dam-
ages, but only of exemplary damages. ^°-

§ 448d. Repetition of earlier charge made by another.

In actions of slander and libel, it has been much discussed
how far the fact of the slander or Hbel complained of being a
mere repetition or republication can be set up, either in justi-
fication or mitigation. ^°^ In some early actions of slander
proof that the words were first spoken by another person,
whom the defendant in his statement named as author, barred
the plaintiff's action; ^°^ and though this is not now law, later
decisions ahnost uniformly admit such evidence in mitigation
of damages, aUke in actions of hbel and of slander. ^"'^ And it

9' Illinois: Storey v. Early, 86 111. "' Bennett v. Bennett, 6 C. & P. 588,

461. and cases cited.

Kentucky: Foster Milbum Co. v. ^"^ Maine: Haynes v. Leland, 29 Me.

Chinn, 137 Ky. 834, 120 S. W. 364. 233.

"* Romayne v. Duane, 3 Wash. C. C. Pennsylvania: Binns v. McCorkle, 2

246, Fed. Cas. No. 12,028. Browne, 79; Hersh v. Ringwalt, 3

»3 Evening Post Co. v. Hunter, 18 Yeates, 508, 2 Am. Dec. 392.

Ky. L. Rep. 726, 38 S. W. 487. South Carolina: Miller v. Kerr, 2

io« United Slates: Printing Assoc, v. McCord, 285, 13 Am. Dec. 722.

Smith, 55 Fed. 240, 5 C. C. A. 91. Tennessee: Larkins v. Tarter, 3

Michigan: Hay v. Reid, 85 Mich. Sneed, 681.

296, 48 N. W. 507. England: Davis v. Lewis, 7 T. R. 17.

Minnesota: Hewitt v. Pioneer-Press '"^ Indiana: Kelley v. Dillon, 5 Ind.

Co., 23 Minn. 178, 23 Am. Rep. 680. 426.

New York: Gray v. Brooklyn Union Iowa: Beardsley v. Bridgman, 17

Pub. Co., 35 App. Div. 286, 52 N. Y. Iowa, 290.

Supp. 35. Kentucky: Williams v. Greenwade,

"» Republican Pub. Co. v. Mosinan, 3 Dana, 432.

15 Colo. 409, 24 Pac. 1055; Rocky Missouri: Baldwin v. Boulware, 79

Mountain X. P. Co. v. Fridborn, 40 Mo. App. 5.

t^olo. 440, 104 Pac. 956, 24 L. R. A. Pennsylvania: FollcK, v. Jewctt, 1

(N. S.) K91. Am. L. Reg. 600, U N. Y. Log. Obs.

'"- Garri.son v. Rr>bin.son (N. J. L.), 193; Sfepp v. Crofl, IS Pa. Suixt. Ct.

79 \\\. 278. 101; Kennedy ''• Grep.ry, 1 Bin. 85.



§449



PROVOCATION



873



is now well established that a defendant, in order to show the
absence of bad motive for the publication, may prove that his
charge was repeated from some reliable source, whether or not
the authority was named. ^""^ Some cases have declared the
existence of common rumor of the truth of the charge relevant,
upon the question of maUce, but other cases have denied its
admissibility. ^^'^

In order to afford evidence of the defendant's motives the
defamation of others must have been known to him; ^°^ and
even where the authority for the charge is mentioned, further
facts, such as lack of belief in its truth, may show actua(l
malice. ^°^ In Hayes v. Tibbits ^^° the fact that a libel was pub-
lished at the request and on the information of a third person
was held not to be a mitigating circumstance.

§ 449. Provocation.

In Louisiana verdicts for the defendant have been allowed to
stand where the facts showed a war of slanderous words be-
tween the parties. ^^^ In other jurisdictions it is agreed that



Rhode Island: Rice v. Cottrel, 5 R. I.
340.

South Carolina: Easterwood v. Quin,
2 Brev. 64, 3 Am. Dec. 700.

i»6 United States: McDonald v. Wood-
ruff, 16 Fed. Cas. No. 8,770, 2 Dill.
244.

Connecticut: Arnott v. Standard
Assoc, 57 Conn. 86, 17 All. 361, 3 L.
R. A. 69 (see Treat v. Browning, 4
Conn. 408, 10 Am. Dec. 156).

Iowa: Morse v. Times Republican
Printing Co., 124 Iowa, 707, 100 N. W.
867.

Kentucky: Evans v. Smith, 5 T. B.
Mon. 363, 17 Am. Dec. 74.

Missouri: Hawkins v. Globe Print-
ing Co., 10 Mo. App. 174.

Oregon: Upton v. Hume, 24 Ore.
420, 33 Pac. 810, 21 L. R. A. 493, 41
Am. St. Rep. 863.

Pennsylvania: Regensperger v. Kie-
fer, 4 Pa. Cas. 541, 7 Atl. 724; Morris
V. Duane, 1 Bin. 90.

Rhode Islaml: Folwell v. Providence
Journal Co., 19 R. I. 551, 37 All. 6.



South Carolina: Galloway v. Court-
ney, 10 Rich. 414.

England: Creevy v. Carr, 7 C. & P.
64.

Contra, Missouri: Moberly v. Pres-
ton, 8 Mo. 462.

Pennsylvania: Good v. Grit Pub.
Co., 36 Pa. Super. Ct. 238.

107 Post, §451.

^^^ Michigan: Wolff v. Smith, 112
Mich. 359, 70 N. W. 1010.

Minnesota: Larrabee v. Minnesota
Tribune Co., 36 Minn. 141, 39 N. W.
462.

New York: Hatfield v. Lasher, 81 N.
Y. 246; Palmer v. Matthews, 162 N.
Y. 100, 56 N. E. 501; Witcher v. Jones,
17 N. Y. Supp. 491; Carpenter v. N.
Y. Evening Journal Pub. Co., 96 App.
Div. 376, 89 N. Y. Supp. 263.

1°^ Jones V. Chapman, 5 Blackf.
(Ind.) 88.

"»2 Abb. Pr. (N. Y.), N. S. 97.

1" P^ulda V. Caldwell, 9 La. Ann. 358;
Goldberg v. Dobberfine, 46 La. Ann.
1303, 130S, 16 So. 192, 28 L . R. A. 721.



874



MALICIOUS TORTS



§449



the defendant in actions of slander may show in mitigation the
plaintiff's speaking or writing of irritating words or other pro-
vocation.^^- The defendant's passion not founded on the plain-
tiff's acts or words will not reduce damages. ^^^ There must, ac-
cordingly, be some connection between the provocation and the
defamation.^" In some cases it has been said that the test in
slander is the same as in assault and that- the plaintiff's wTong-
doing is madmissible if so remote from the defendant's as to
afford an opportunity for hot blood to cool.^^^ In other de-
cisions, both in libel and slander, evidence of the plaintiff's
charges has been declared inadmissible unless a part of the
controversy or transaction which included the defendant's pub-
lication. ^^^ Testimony will not be received to show the plain-



"- Alabama: Moore v. Clay, 24 Ala.
235, 60 Am. Dec. 461.

ArkaTisas: Patton v. Cruce, 72 Ark.
421, 81 S. W. 380, 105 Am. St. Rep.
46, 65 L. R. A. 937.

Georgia: Pugh v. McCarty, 40 Ga.
444.

Illinois: Freeman v. Tinsley, 50 III.
497; Thomas v. Fischer, 71 111. 576.

Indiana: Brown v. Brooks, 3 Ind.
518; Mousler v. Harding, 33 Ind. 176.

Iowa: McClintock v. Crick, 4 Iowa,
453; Emerson v. Miller, 115 Iowa, 315,
88 N. W. 803.

Kentitcky: Craig v. Catlet, 5 Dana,
323; Dimcan v. Brown, 15 B. Mon.
186.

Maryland: Botelar ?'. Bell, 1 Md. 173;
Shockey v. McCauley, 101 Md. 461,
61 Atl. 583; Davis v. Griffith, 4 Gill &
J. 342.

Michigan: Ritchie v. Stenius, 73
Mich. 563, 41 N. W. 687; Newman v.
Stein, 75 Mich. 402, 42 N. W. 956, 13
Am. St. Re]). 447.

Minnesota: Warner v. Lockorby, 31
Minn. 421.

Mississippi: Powers v. Presgrove.s,
38 Miss. 227.

Missouri: Israel v. Israel, 109 Mo.
App. 366, 84 S. W. 453.

New York: Xavicr v. Oliver, SO Af)p.
Div. 292, 80 N. Y. Siipp. 225; Khv r.



Ferris, Anth. N. P. 36; Maynard v.
Beardsley, 7 Wend. 560.

Oregon: Shartle v. Hutchinson, 3
Ore. 337.

Tennessee: Haws v. Stanford, 1 Tenn.
Cas. 80.

Wisconsin: Rogers v. Henry, 32 Wis.
327; Massuere v. Dickens, 70 Wis. 83;
Candrian v. Miller, 98 Wis. 164, 73 N.
W. 1004.

England: Watts v. Fraser, 7 C. & P.
369.

Canada: Downey v. Stirton, 1 Ont.
186; Stu-ton v. Gummer, 31 Ont. 227.

"3 Illinois: Flagg v. Roberts, 67 111.
485; Miller v. John.son, 79 111. 58.

Louisiana: Bonnin v. Elliott, 19 La.
Ann. 322.

Maryland: Shockoy v. McCauley,
101 Md. 461, 61 Atl. .583.

New York: Gould v. Weed, 12 Wend.
12.

"■• Battoll V. Wallace, 30 Fed. 229.

^^^ MassachusrUs: Sheflfill v. Van
Dcusen, 15 Gray, 485, 77 Am. Dec.
377; Child v. Homer, 13 Pick. 503.

Minnesota: Quinbv r. Minn. 'IVibune
Co., 38 Minn. .528, 38 N. W. 623,
S Am. St. Rep. 693.

"" Indiana: Swann v. Rary, 3 Blackf.
298.

New York: Lister v. \\ri^;lil, 2 Hill,
320.



§ 450 DISPROOF OF DAMAGE 875

tiff's habit of defaming the defendant; ^^^ nor to prove general
hostile relations between the parties, ^^^ even though the neigh-
borhood knew of them.^^^ And the publication of a slander by
way of deliberate reprisal has been regarded as evidence of
malice in fact.^-°

It was held in North Carolina that mental distress of the de-
fendant at the time he uttered the slander, caused by his be-
lief in the truth of it, was admissible in mitigation. ^^^ But the
defendant cannot prove in mitigation of damages, irritating
language addressed to him by the father of the plaintiff imme-
diately previous to the uttering of the slanderous words to an-
other person. ^22

§ 450. Disproof of damage.

Another class of facts is received in mitigation as proving that
the amount of damage caused to the plaintiff by the defama-
tion was less than would at first seem to be the case.^-^ Since
the principal element of damage is injury to the plaintiff's char-
acter, it is pertinent to show that this character was not at all or
very little injured in the minds of the hearers. This may be
done in one of two ways: by showing that the words were not
believed, or by showing that the plaintiff's character was so
bad as not to be injured. The latter method is not encouraged
by the courts, because in adopting it the defendant is obliged
to defame himself. Thus in Massachusetts it was held that
the defendant could not show that he was in the habit of talking

Pennsylvania: Steever v. Beehler, 1 In Craig v. Catlet, 5 Dana, 323, it

Miles, 146. was pointed out that if evidence of

Virginia: Bourland v. Eidson, 8 enmity between the parties were ad-

Gratt. 27. missible, its normal effect would seem

England: May v. Brown, 3 B. & C. to be to prove rather than to disprove

113; Tarpley v. Blabey, 2 Bing. N. C. express malice.

437. I'^Swann v. Rary, 3 Blackf. (Ind.)

^^'^ Michigan: Porter v. Henderson, 298.

11 Mich. 20, 82 Am. Dec. 59. i^o Gray v. Elzroth, 10 Ind. App. 587.

North Carolina: Goodbread v. Led- '^' McDougald v. Coward, 95 N. C.

better, 1 Dev. & Bat. L. 12. 368.

England: Wakley v. Johnson, R. & 122 Underbill v. Taylor, 2 Barb. (N.

M. 422, 27 Rev. Rep. 767, 21 E. C. L. Y.) 348.

787. *23 ]\iorgan v. Lexington Herald Co.,

>'s Andrews v. Bartholomew, 2 Met. 138 Ky. 637, 128 S. W. 1064.
(Mass.) 509.



87G MALICIOUS TORTS § 451

too much about persons and things, so that what he said was
not regarded in the community as worthy of notice. ^-^ Yet
the evidence would bear directly on the degree of the plaintiff's
injury. The defendant may prove, in mitigation of damages, a
declaration of the plaintiff that he was not injured by the words
complained of. But evidence that the witnesses who heard the
words uttered did not believe them, is not admissible. ^^^ The
fact that a libel will not be believed has been held in Massa-
chusetts,^-^ where exemplary damages are not allowed, not to
deprive the plaintiff of his right to substantial damages.

§ 451. Bad character and reputation of plaintiff.



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