20 Vt. 232 | Vt. | 1848
The opinion of the court was delivered by
The several counts in the plaintiff’s declaration all charge, that the defendant, on two different days in September, 1843, in words addressed to, and spoken of, the plaintiff, accused him in general terms of the crime of perjury, being a perjured rascal, &c. The defendant, at the September Term, 1844, pleaded only the general issue, and upon trial a verdict passed for the plaintiff. On review, the defendant, at the April Term, 1845, by leave of the court, filed four special pleas in bar, all averring that the plaintiff, on the trial of certain issues pending before different judicial tribunals, at different times, on being called and sworn as a witness, committed wilful and corrupt perjury. Replication de in-juria absque tali causa and issue closed to the country. On trial of these several issues at the September Term, 1845, the plaintiff again obtained a verdict for damages and costs; after which and before judgment a motion in arrest, founded on supposed defects in the plaintiff’s declaration, was filed; but this point has not been insisted upon in argument.
The important question in the case arises upon the exclusion, by the county court, of evidence that the general character of the plaintiff, in respect to the crime imputed in the alleged slander, was bad, — that his general character was, that he was a dangerous witness, and his statements under oath were not to be relied upon, &c. It is a question of no little practical importance; and, considering the diversity of views entertained respecting it in different courts and by different Judges, it must 'be regarded as one not free from difficulty. This difficulty is enhanced by a consideration of the greatly diversified forms, in which it has been presented in different reported cases.
If the doctrine laid down in the case of Jones v. Stevens, 11 Price 235, in the English court of Exchequer, be sound, especially if we adopt to the full extent the reasoning of Baron Wood, we should Be compelled to hold, that in no state of the pleadings, and under
It may be true, as insisted by Baron Wood, that in Jones v. Stevens, the several pleas in bar were bad, and ought to have been demurred to for the same and for other reasons. They were substantially but mere amplifications of the charges contained in the original libel, which imputed dishonorable and disreputable practices as an attorney, in certain suits, in connexion with one Hammond, who
In New York and Massachusetts many cases have been decided on this subject, which, though very far from running parallel with each other, — those in the former state being more severe and stringent in restraining the latitude of defence than those in the latter, — yet agree in this, that there is no fixed horizontal rule of damages, applicable to any given case of libel, or slander, by which every party, whatever his general character and standing may be, shall recover an equal compensation in damages. The opinions of the learned Barons in the case of Jones v. Stevens seem to countenance such a doctrine; but I do not find any case going to that extent in this country. If any variation is allowable, although, until the contrary be shown, it may be presumed that the plaintiff’s character is irreproachable, and therefore proof in support of it is neither necessary, or admissible, still it must be competent for the defendant to show, in mitigation, that the plaintiff’s character, either generally or in reference to the matter imputed, is not unexceptionable, and that consequently the damage sustained is not as great as it otherwise would be; or else, in accordance with the early notions as to the peculiar province of juries, they are to be left to act upon such information, as they may happen to possess from being of the vicinity. This, in reference to general character, was decided in Paddock v. Salisbury, 2 Cow. 811, and was recognised by Savage, Ch. J., in
In the early case of Foot v. Tracy, 1 Johns. 46, the four Judges present were equally divided upon the question, whether evidence bearing upon the general character of the plaintiff, not only as a lawyer, but as a man, should have been received, Kent, Ch. J. and Thompson, J., being in the affirmative, — Livingston, J., and Tompkins, J., in the negative, the latter delivered no opinion. Thompson, J., did not doubt but that general reputation, in respect to the matter charged in the libel, which in this case was very indefinite, but referred to the plaintiff as an attorney, or commissioned pettifogger, was admissible; but hesitated whether the plaintiff’s character as a man was open to impeachment. He however, finally became convinced it was. The Chief Justice had no scruples upon that point, — holding that “ the jury, in assessing the damages, must take into consideration the general character, standing and estimation of the plaintiff in society; as it could not be pretended, that every plaintiff was entitled to an equal sum, for the worth of his character.” Livingston, J., assuming what all modern authorities are agreed in, that, under a plea of the general issue alone, the truth of the matter charged could not be shown in mitigation of damages, goes on to say, that admitting evidence of this kind would be only another way of making a jury believe that the defendant had published nothing but the truth. Under that plea, — and no other was put in, — it is unquestionably true, that it was not competent for the defendant to showj by direct proof, for any purpose, the truth of the publications; but the evidence offered did not propose to do this, directly, or otherwise. Spencer, J., having been of counsel in the case, gave no opinion; but subsequently at Nisi Prius, in Springstien v. Field, Anth. N. P. 185, admitted such evidence,— entertaining no doubts about it.
In Paddock v. Salisbury, 2 Cow. 811, the slander consisted in charging the plaintiff with arson and theft. Plea, the general issue. The Judge, who tried the case, admitted evidence impeaching the plaintiff’s general character, “as a virtuous, honest man, or otherwise.” The supreme court, on a motion for a new trial, held the evidence admissible. The same general doctrine is recognised by'
In Bodwell v. Swan et ux., 3 Pick. 376, the defendants under the general issue, with a view to remove the presumption of malice, offered to prove various instances of improper conduct with married and unmarried men, the plaintiff being an unmarried female, and the charge being adultery and fornication; but all such evidence was
The case of Root v. King, already referred to, was regarded at the time as one of much importance, and was ably discussed by the counsel and court. As I have remarked, no attempt was made to impugn the general character of the plaintiff. The court agreed, that the defendant was at liberty to make such an attempt, had their been grounds for it; but they lay down the position broadly, that the character of the plaintiff, in the capacity in which he is slandered, cannot be inquired into, unless the plaintiff chooses-to direct the inquiry into that channel. The Judge below, Bjetts, had ruled, that intemperate habits might be shewn in mitigation, provided they were of the kind and degree charged in the libellous publication. This is disapproved of by the Chief Justice, even without the qualific-ati on, under a pleaof justification. Under the general issue merely, he admits there are recent English cases, which would allow the evidence, — but expresses no opinion respecting it. - Believing as I do, that in accordance with the well considered case of Stone v. Varney, 7 Met. 86, and cases decided in Ohio, North Carolina, Kentucky, . and Indiana, there is no good ground for limiting the right of de-fence, under the general issue, in consequence of the defendant spreading upon the record a plea, averring the truth of the words, the reasoning of the judge seems not to be sustained by the case to which he refers. The true distinction, it seems to me, respects rather the nature and character of the evidence, relied upon by way of impeachment than the inquiry, whether the character, in the
So, too, in Bodwell v. Osgood and Bodwell v. Swan we have a practical illustration of this distinction; for while much evidence was adduced to show the plaintiff’s general character for chastity, particular instances of misconduct were not allowed to be proved. This is the doctrine in Massachusetts. Mr. Greenleaf, however, shows that in other states, particularly Connecticut, Pennsylvania, Maryland, Kentucky and South Carolina, as well as in England, general reports and suspicions are received in mitigation; while in Massachusetts, New York and Virginia they are not. 2 Greenl. Ev. §275, and n. (I.) Stark on Slander, 84, n. (1.) Young v. Bennett, 4 Scam. 43.
Perhaps the case of Inman v. Foster, 8 Wend. 602, furnishes a test as unexceptionable as any, and as little subject to practical misconstruction, namely, that general reports are not to be received, unless they have affected the general character. The plaintiff was allowed to introduce evidence of good character, by way of answer to evidence on the other side, impeaching his character generally in respect to the matter imputed. Thus far, declarations, as usually framed and as framed in this case, obviously invite scrutiny into the plaintiff’s character. It cannot be said, therefore, if met by proof for the question of damages, that he is taken by surprise. It may be true, as insisted by Baron Wood in Jones v. Stevens, that these prefatory allegations are mere inducements, not traversable, and wholly unnecessary. If they are put forward, however, as a ground for enhanced damages, it would be strange, if they could not be de
Although at an early period it was held otherwise, it is now universally agreed, that if the defendant would insist upon the truth of the words in defence, he must plead it, or give notice of it, and that he cannot be allowed, underthe general issue, to avail himself of such matter, to diminish the damages. Being properly pleaded and shown in proof, the truth, in libel, or slander, is always a perfect de-fence to the action. It cannot be used for any subordinate purpose. It has been urged with much force, particularly by Ch. J. Savage in Root v. King, that facts and circumstances, which tend to induce a belief of guilt, ought not to be allowed indirectly in mitigation, when they cannot be shown direcly by way of defence. The argument doubtless has weight, so far as it is pointed against the introduction of particular facts, or rumors and reports, tending to show the plaintiff guilty of the particular matter charged. It has little, or none, when applied to general evidence, affecting the plaintiff’s character, the very introduction of which presupposes the defendant’s inability to prove his imputations true. With the qualifications and restrictions with which we are disposed to admit evidence of this kind, no settled maxims of law or rules of pleading are violated. Here the evidence offered and excluded had no relation to the specific charges of false swearing, as embodied in the several pleas in bar. The defendant had failed to prove these ; his guilt, and consequent responsibility for some damages, was admitted by the offer. He merely sought to limit the recovery to the damages actually sustained. It was stated in different forms, but, in substance,.he proposed to show, that the plaintiff’s character, as a witness under oath in a court of justice, was bad, — th.at he was a dangerous witness, and not to be ' relied upon. What the proof would have been we cannot anticipate. We are satisfied from authority and reason it should have been received.
In Stone v. Varney, already .cited, Dewey, J., delivered a very full and elaborate opinion. The libel imputed heartless cruelty, on the part of the plaintiff, to his child. The general issue was pleaded, and notice given that the defendant would show in defence, that the charge, if sustained by proof, was true. Evidence was offered
In Sawyer v. Hopkins, 9 Shepley 269, where the truth was pleaded without the general issue, the plaintiff was allowed to give evidence of the extent and degree of malice, to enhance damages, and it was doubted, whether the defendant was precluded from adducing counter evidence. McNutt v. Young, 8 Leigh 542, is a case almost precisely like the present. The slander imputed perjury; the pleas were the general issue and a justification; evidence of the general bad character of the plaintiff for veracity under oath was offered and rejected; and the supreme court were of opinion it ought to have been received. I find several cases in Indiana, substantially to the same effect. In Saunders v. Johnson, 6 Blackf. 50, where the crime imputed was perjury, and a justification was pleaded, it was held, that mere rumors and reports that the plaintiff had committed the crime could pot be received; yet, like Inman v. Foster, it is assumed, that if the reports had been of a nature to affect the plaintiff’s general character, in respect to the matter imputed, they might very properly have been shown in reduction of damage. See Burke v. Miller, Ib. 155, where, by way of proving the plaintiff’s bad character, the defendant was not allowed to go into facts tending to show the charge true. McCabe v. Platter, Ib. 405, is a case strongly resembling those in 3 Pick., already cited. The slander was of the same nature, — the plaintiff an unmarried female, — the pleas the same in substance, and the defendant was allowed to show the plaintiff’s general character as to chastity.
The judgment of the county court must therefore be reversed and a new trial granted.