2 Ky. Op. 566 | Ky. Ct. App. | 1866
OPINION OP the Coubt by
If the appellant, by diligent inquiry and careful scrutiny, might have ascertained before the trial that the appellee, Mary Fresh, was then pregnant, it might have been difficult, and probably impossible, to know that she had been impregnated before marriage. The subsequent birth of her child and its apparent age were necessary to lay a foundation for a safe judgment on that point. And therefore, although he appears to have been very negligent, yet, had he been more diligent, he might not have been able to make any proof of her conception before marriage. And had he been able to do so, it would have been of but little weight as evidence that she was a whore by merely, as might be presumed, anticipating with her betrothed husband, their approaching nuptials.
But, considering the apparent condition of the parties, a verdict for $8,000 seems quite high, though perhaps not so flagrantly excessive as to indicate passion or prejudice in the jury. The slander, as charged, was exceedingly aggravated, and, without 'any other testimony than that alleged to have been discovered since the trial, there could be no semblance of justification, and at the utmost, the doubtful tendency of that single fact would but slightly mitigate. But as it might have, and probably would have, such an effect and the verdict might have been somewhat reduced by it had it appeared before the jury, we are inclined after carful and perplexing consideration, to think that, without any violation of 'principle or law, a new trial would do the appellees no wrong, and would afford a more satisfactory and assuring evidence of justice.
Wherefore, the judgment is reversed, and the cause remanded for a new trial.