29 Mich. 260 | Mich. | 1874
Error .is brought in this case to reverse a judgment ren^dered for a slander alleged to have been uttered of the plaintiff, Susan A. McBain, who is an infant, by Amina. Burt, the wife of Wellington B. Burt, who is joined with her' as defendant in the action.
At the common law the husband was not only a necessary defendant in a suit for his wife’s tort, but he was responsible in person and property for the damages recovered. This responsibility is now wholly taken away. — Gomp. L. §§ 6129, 7S82. What reason there can be for joining the husband as defendant in a suit where the judgment, though rendered against him in form, can neither be satisfied from his property nor subject his person to imprisonment, it is difficult to conceive, for it would seem plain that he might disregard the proceeding altogether, and suffer the case, so far as he is concerned, to go by default, without either subjecting himself to pecuniary risk, or either improving or prejudicing the ease of the plaintiff against the real defendant. These facts would constitute reasons sufficient for such an amendment of the statute as would make the joinder unnecessary, but the legislature seem never to have recognized them. On the contrary, in the very statutes referred to, it is assumed that the husband, though no longer responsible for the damages which may be recovered, is. still a proper party to the suit, for it is in .the cases where he “has been or shall be joined as defendant with his wife’’.'that the statutes exempt his person and property from.responsibility for her torts. ,
In the recent case of Mich. Cent. R. R. Co. v. Coleman,
Passing from this preliminary question to the errors assigned on rulings at the trial, it is necessary to state that the slander complained of was that the plaintiff, who was .an unmarried woman, had been with child and had a: miscarriage. In the declaration various utterances were set forth of which this was the substance, and several witnesses were called to prove them. One of the witnesses was allowed, under objection, to testify to Mrs. Burt’s admission that she supposed she had repeated the story. The objection to this was, that it was only her supposition, and not
Another error assigned is, that plaintiff was permitted, although the declaration did not claim special damages, to show that in consequence of the slander she was excluded from the society in which she formerly moved, and was affected in mind and health. But these results are the natural, and we might almost say the inevitable results of such a slander of a virtuous young womau, and they might be shown without setting them out in the declaration.— Phillips v. Hoyle, 4 Gray, 568 ; Swift v. Dickerman, 31 Conn., 285. It is to be borne in mind that our statute {Comp. L. 1871, § 6176) makes the imputation of want of chastity in a female actionable per se, so that the necessity for an averment of special damages in order to show a cause of action is not requisite here, as it otherwise would be; and some decisions to which we were referred, which were made in states where no such statute exists, are for this reason not applicable.
A witness called for the prosecution to show the speaking of the words, testified on the cross-examination that she had previously heard the same story from others. On reexamination she was asked to state from whom. This was objected to, but was very properly allowed. It would be singular indeed if, after the defense had brought the previous reports into the case, the plaintiff should not be. at. liberty to show whence they came and what there was to them. The purpose in proving them may be assumed to have been to show that Mrs. Burt only repeated a common rumor and did not originate the slander, and thereby mitigate the damages; but this made the extent and prevalence of the rumor a proper subject of inquiry, and it entitled the plaintiff, also, to trace it back to Mrs. Burt, if she should be able to do so.
The most important question in the case, perhaps, relates i to the, offer of the defendants to show the proceedings in a,former case between the same parties, relating to the same
The plaintiffs in error insist that their offer was admissible on two grounds: 1. On the same ground as a retraction and apology are allowed to be shown in mitigation of damages; 2. As showing an accord and satisfaction. But it will be observed that the offer was not to show an apology or a retraction, but only a disclaimer that the parties at ihe time of the former trial' believed the reports. Now, if the story had been persisted in up to that time, and its unfounded character only then admitted for a consideration, we are not prepared to say that the admission could be regarded in any case as entitling the defendants to-the favorable consideration of court or jury. Certainly in the case between these parties it could be allowed no influence whatever.
In this case the plaintiff was an infant, and she could not be bound by any relinquishment or attempted relinquishment by another of her rights. The next friend in the first suit had charge of its conduct, and if permitted by the court might stop the trial; but he could not agree on her behalf that no. future suit should be brought, or that her cause of action should be discharged. The infant, not the next friend, was the party to the suit: — Smith v. Floyd, 1 Pick., 275; Brown v. Hull, 16 Vt., 673; and the latter could not admit away her rights. — Chandler v. McKin
The judge’s instructions to the jury are complained of. He was requested to instruct them, that even though Mrs. Burt spoke the words charged, or some of them, yet if they believed they were spoken by her without any intention to injure the plaintiff, and under such circumstances as would not lead the person who heard them to believe they were spoken as true, the plaintiff could not recover. Also that if Mrs. Burt made the statement as something she had heard, accompanied with the further statement that she did not believe it to be true, and did not intend to impute a want of chastity, and was not understood by the persons who heard her statement to impute it, and if in this manner her statement taken together was a denial of the imputation, it was no!; actionable, and defendants should be acquitted. These requests were refused, -and we think correctly. They amounted in substance to this: that any charges whatsoever might be published and repeated with impunity, so long as their truth was disclaimed, or so long as the. persons who heard them uttered were not led to believe them. Such a doctrine is immoral and pernicious, and
The following instructions to the jury on the question of damages were objected to-:
. “I ean give you no rule of law by which you can fix the compensation to be awarded the plaintiff. Can you tell the extent of the wound inflicted upon this plaintiff? Can you tpll the suffering of a sensitive girl like this plaintiff, if
“As I said, I can give you no definite rule of law by which you are to reach a conclusion. You must apply your best judgments to the facts brought before you, considering the situation of the plaintiff and the defendant, the character of each, the character of the words uttered, and from all the surroundings of the case say how much should be given by one to the other.
“In determining that amount you should, however, carefully consider what might not be a defense or justification on the part of the defendant. You should consider whether there is any evidence showing express, positive malice on her part against the plaintiff. If you were satisfied by the testimony in the case that she was governed in the utterance of these words by actual, existing malice, then the compensation or award of damages should be higher and more severe than if you were satisfied that the words were uttered without any express malice. If they were thought* lessly uttered, without due consideration of the import of the words, without any intent to injure the plaintiff — if there is no express malice proven in the case to your satisfaction, you should give less damages than you would if it is proved. You should take another matter into consideration in fixing the amount of damages.
“Satisfy your minds before fixing upon the amount, whether this defendant originated this story herself, or whether she simply repeated what she heard. If she originated the story, and it is false; if it was the outgrowth of a wicked heart; if it is the offspring of her own brain; the coinage of her own mind; her guilt would be greater than it would be if she received it from some one else, and simply gave it further circulation thoughtlessly, without any design to injure, without any intent to wrong. The proof upon this point you should carefully consider, and see to it that your verdict is not as light in the one case as it would be in the other.”
We have examined all the errors which we think are presented by the record, and finding none of them well assigned, the judgment must be affirmed, with costs.