176 Mass. 206 | Mass. | 1900
The only questions in this case, relate to the admission and exclusion of evidence. The action is for slander and assault. The plaintiff testified that in the presence of numerous persons the defendant stepped up to the plaintiff and shook his clinched fist in her face so near that she was obliged to withdraw her head a little in order to avoid being hit, and said to the plaintiff aloud, and in an angry tone, “You are a thief! you are a thief! you are a thief! ” The defendant’s account of the transaction was that the plaintiff was in arrears for rent of her rooms, and that when he spoke to her about it she said she had the money in her pocket and could pay at any time she wished, and that thereupon he said, “ If you have got the money in your pocket and do not pay your rent, you are acting like a thief,” and that this was all that he said. He also testified “ that he did n’t shake his clinched fist in the plaintiff’s face, or anything like it.” Against the plaintiff’s objection, and subject to her exception, he was then permitted to answer “ No ” to the question, “ Whether or not you intended to accuse Mrs. Faxon of the crime of stealing ? ”
It has been expressly adjudged in this Commonwealth that because a libel or a slander involves an injury to the feelings of the plaintiff, as well as to his reputation, his injury may be greater if the defamatory words are uttered with express malice than if there is only the malice which the law implies from
The plaintiff’s testimony would warrant a finding by the jury that the defendant was actuated by express malice, and that additional damages for the injury to her feelings should be awarded on that account. It was, therefore, competent for the defendant to introduce evidence that he had no hostile feelings
The plaintiff also seems to have contended that the defendant’s language as testified to by him was so spoken as to be an insinuation which would be understood as charging the plaintiff with being a thief. The judge admitted the answer as bearing upon this contention. We are of opinion that the evidence was competent. The witness Grace had given testimony favorable to the plaintiff on the question in dispute between the parties as to what the defendant’s words were. The defendant’s contention being .that his language did not constitute a charge of larceny against the plaintiff, but related only to a controversy about the payment of rent, it was competent to ask the witness in cross-examination, as tending to control or modify his testimony in chief, whether he did not understand the epithets used by the defendant towards the plaintiff to relate to the failure to pay rent. His affirmative answer to this question was a modification of his direct testimony, proper for the consideration of the jury.
The evidence offered by the plaintiff and excluded pertained only to the question of damages, and the finding for the defendant makes it immaterial.
Exceptions overruled.