Fuller v. Dean, 31 Ala. 654

31 Ala. 654 | Ala. | 1858

STONE, J.

— In considering the questions presented by this record, we attach no importance to the fact that the plea of justification was interposed after the evidence was given in, as the legal questions in either event are the same. For the purposes of this opinion, then, we will consider that the trial was had on three pleas: 1st, not guilty; 2d, the statute of limitations of one year; and, 8d, justification.

The first exception questions the .legality of the evidence introduced by the defendant, to the effect that, previous to the speaking of the slanderous words by him, another person had charged the plaintiff with having stolen a sack of salt, and that he (the plaintiff) did not deuy the truth of the charge. "We can see no principle on which this evidence was admissible, unless it be under the influence of the maxim, qui taeet consentiré vicletur; an admission, inf erred from acquiescence in the verbal statement of another. In speaking of this kind of evidence, Mr. Greenleaf says: “It should always be received with caution ; and never ought to be received at all, unless the evidence is of direct declarations of that kind which naturally calls for contradiction;” * * * “It may be impertinent, and best rebuked by silence.” — 1 Greenl. Ev. § 199. Now, we do not think the charge made in this case was of a nature to call for a reply; but, in the language of Mr. Greenleaf, we think it was impertinent, and best rebuked by silence. In admitting this evidence, the circuit court erred. — Lawson v. The State, 20 Ala. 65.

The remainiug exceptions present substantially but two questions: 1st, whether, under these issues, it was competent for the defendant to prove, in mitigation of damages, that before the speaking of the words by Dean, the general character of the plaintiff for honesty was bad; and, 2d, whether it was competent, in mitigation, to prove, also before the speaking of the words charged, that Fuller was generally suspected, in the neighborhood in which he lived, ‘of having stolen a sack of salt.

■The first of these questions is answered in the affirmative, in Pope v. Welsh, 18 Ala. 631. The opinion of Parsons, J., in that case, is an able and well considered argument, fully sustained by authority; and we concur with him in his conclusions. We also concur with the court, in the case last cited, in disregarding the dictum found in the last paragraph of the opinion in Shelton v. Simmons, 12 Ala. 466. — See, also, Commons v. Walters, 1 Porter, 323; 2 Greenl. Ev. (6th ed.) § 424, and notes; Eifert v. Sawyer, 2 Nott & McC. 511; Brunson v. Lynde, 1 Root, 354; Paddock v. Salisbury, 2 Cow. 811; Walcott v. Hall, 6 Mass. 514.

The case of Commons v. Walters, 1 Por. 323, also answers the second of the above questions in the affirmative. The ease of Bradley v. Gibson, 9 Ala. 406, does not disturb the authority oí Commons v. Walters. On the contrary, it impliedly re-affirms the doctrine. True, in the case of Bradley v. Gibson, supra, this court refused to receive evidence of a report that plaintiff had been suspected or accused of a particular offense. Proof that a party had been generally suspected, in the neighborhood, of an offense, is certainly a very different proposition from proof of a report, or general report, that he had been suspected, accused, or even guilty of such offense. There may be a report, or general report, that a party has been guilty of a certain offense; and that report may be so utterly disregarded, as that it does not cause the party to be generally suspected of guilt. The one may be idle rumor, while the other denotes confidence in the truth of the report, which of course would affect the party’s general character. It is on this principle alone that the evidence is admissible. We re-affirm the doctrine settled in Commons v. Walters, supra. — 2 Greenl. Ev. (6th ed.) § 424, note 1, on pp. 421-4; Earl of Leicester v. Walter, 2 Camp. 251; 2 Stark. on Slander, 88, and note pp. 89, 90, et seq.; Williams v. Mayor, 1 Binney, 92; Middleton v. Calloway, 2 A. K. Marsh. 372; Buford v. McLuny, 1 Nott & McC. 268; Hyde v. Bailey, 3 Conn. 466.

The case of Scott v. McKinnish, 15 Ala. 662, is not in conflict with this view.

What we have said above, in relation to the'introduction of evidence, is decisive to show that the circuit court did not err, either in the charge given, or in the refusal to charge as asked. We think the charge asked, is a clear misapprehension of the rule. It is very true that a defendant shall not avail himself of the plaintiff’s bad character, caused by the slander uttered by himself, to reduce the plaintiff’s recovery. This would be to permit him to profit by his own wrong. It is equally clear, however, that under no circumstances can the defendant be held accountable for damages to the character of the plaintiff, which are not traceable to the slander uttered by the defendant himself. If others, by uttering similar slanders, or imputing the same offense to the plaintiff, had tarnished his character before the slanderous words were uttered or repeated by defendant,' proof that that first or former slander was false certainly should not have the effect of holding him who last repeated the words accountable for the combined injury to the plaintiff’s character, caused, perhaps, mainly by the slander and malice of others. The vice of the charge consists in this, that it assumes erroneously that every slander uttered of the plaintiff, no matter by whom, or how often spoken, if it impute to him one and the same crime, is in law one and the same slander, and whoever repeats the charge is responsible for the whole.

Nor the single error above pointed out, the judgment of the circuit court is reversed, and the cause remanded.