Cavanaugh v. Austin, 42 Vt. 576

Cavanaugh v. Austin

42 Vt. 576 | Vt. | 1870

The opinion of the court was delivered by

Pierpoint, C. J.

The only question presented by the bill of exceptions, that we are called upon to decide, is as to the admissibility of the letter from the defendant to Dewey & Noble, for the purpose for which it was admitted. The letter was excluded by the court' as evidence tending to prove the allegations in the first count of the declaration, but was admitted as tending to show that the slanderous words, charged to have been spoken by the defendant, in the second and third counts, Avore uttered maliciously. Whether the letter Avas properly excluded as evidence under the first count, or not, is not now the question, but we think it perfectly clear that it was admissible as tending to sIioav malice, under the second and third counts. The letter contains substantially a *579reiteration of the charge of theft contained in said counts. The rule is well settled that charges .other than those set out in the declaration, of a similar character, may bo proved in the action of slander, not as a substantive ground of recovery, but as tending to show malice. But it is said the letter should have been excluded because the charges contained in it were made in the course of a judicial proceeding, or with reference to it. If the fact was so, there would be more plausibility in the argument, but the exceptions show that the statements were not made under any such circumstances as by any possibility could bring them within that rule. No judicial proceeding was pending, or contemplated, that called for, or rendered proper or pertinent, any such statement. It was entirely voluntary and gratuitous. Again, in the action of slander it is competent for the jury, ou the question of damages, to take into consideration the fact that the defendant, in' his pleadings in the case, has reiterated the statements, and attempted to justify them on the ground that they are true.

The judgment of the county court is affirmed.