49 Tenn. 264 | Tenn. | 1871
delivered the opinion of the Court.
The defendant- in error, being a minor, brought this action under the Code, 3400, which declares that “any
On the trial, in the Court below, two witnesses testified to the speaking, by plaintiff iii error of part of the words laid in the declaration, and clearly imputing fornication. These witnesses were assailed, in the progress of the cause, by their own admissions that they were unfriendly to plaintiff in error, and- were further attacked, partly by proof as to contradictory statements, and in part by evidence discrediting them from their general reputation: but a larger number of sustaining witnesses swore, that, from their knowledge of their general characters, they were entitled to credit upon oath. Some of the witnesses thus testifying were in turn assailed; but as the credibility of all the witnesses was peculiarly and appropriately a question for the jury, it is not necessary, under a long and well established rule of this Court, to enter upon a critical and extended examination of their respective claims to credit.
The general character of the defendant in error, as to chastity, was also assailed upon the trial; and it was
It is impossible, however, after a careful examination of the entire evidence set out in the record, to avoid the conviction that the verdict was rendered in favor of a plaintiff of doubtful character, upon the evidence of witnesses of doubtful credit. While this conviction does not, of itself, afford sufficient ground upon which to reverse the judgment, it imposes a more imperative duty to scrutinize the incidents attending the trial, and to consider the errors in law which are alleged to have occurred during its progress.
It seems, from the evidence, that one of the sons of the plaintiff in error was, in the language of the witnesses, engaged in “courting” the defendant in error; that her chief witness was the Mercury, or go-between; that her suitor had sent her “a white handkerchief with four grains of spice in it,” axrd that she had sent him “a letter containing a hickory tooth-brush and three grains of spice.” What enigmatical meaning was attached to •these symbolic missives, or whether they were to be regarded as signifying love or hatred, or as dimly foreshadowing the action of slander, does not appear from the record; but .it does clearly appear that the son’s courtship was carried on without the knowledge
The slanderous words were proven by two brothers, testifying to the same conversation, and do not seem to have been uttered on any other ocasion. It seems that one of the sons of plaintiff in 'error was, during the interview or altercation, called in to prove the agency in the courtship of the principal witness, who became infuriated, drew bis knife and made strong threats. There is also evidence tending to show that both witnesses for defendant- in error were intoxicated, or under the influence of liquor, at the time of the alleged conversation. One of the sons of the plaintiff in error testifies that he heard all the conversation; that no charge of fornication was made; but that his father did say, with an oath,
Without analyzing the other evidence, as to the contradictory statements alleged to have been made by the principal witnesses as to what occurred at the time of the utterance of the alleged slanderous words, it is obvious, from the facts appearing in the record, that his Honor’s charge to the jury was not sufficiently full and explicit as to the rules by which they were to be governed in weighing the credibility of the witnesses; and that, as given, the charge was calculated to mislead.
After stating, very briefly, that a witness may be discredited by the evidence of witnesses who would not believe him on oath, from their knowledge of his general character; or sustained, in like manner, by witnesses who would believe him; that he may be impeached, by proving that he made “certain material statements” which he denies; or that “his swearing in reference to material matters may be contradicted by the testimony of other credible witnesses in reference to the same matters,” his Honor instructed the jury further, as follows: “When a witness’s credit is questioned, you try it as you would try any other fact in the lawsuit, looking to all the evidence in the case bearing upon that subject, and determine whether he is worthy of credit or not.”
But, in order to enable the jury, in view of all the evidence in this cause, intelligently to try the fact of the credibility of the two leading witnesses for the plaintiff below, his Honor should have told the jury, in accord-
The jury, therefore, do, when the credit of a witness is assailed, try the question as they would try any other fact “-in the lawsuit;” but they must try it under instructions as to the rules of evidence appropriate to the question, of which the rule cited is of great practical consequence in civil as well as criminal cases. This important rule, so necessary for the guidance of the jury, was approved by this Court, in Whiteside v. The Stale, 4 Cold., 180.
While the Circuit Judge is under no obligation to charge the jury upon abstract or irrelevant propositions, yet it is his duty, in civil as well as in criminal cases, to charge- the law arising upon the facts in every case, not in remote and impalpable generalities, but as applicable to the facts, so as to aid the jury in arriving at a correct conclusion. See Wilson v. Smith, 5 Yer., 379; Turbeville v. Ryan, 1 Hum., 113. See, also, 5 Yer., 453; 2 Swan, 237; 1 Head, 209; Ib., 610; 2 Head, 565.
The record in this cause shows, further, that: “The Court was asked by the defendant to charge the jury,
The conflict in the authorities upon this question is more apparent than real. It is generally conceded that, in actions of libel or slander, where the occasion and circumstances of publishing the libel or speaking the words impose upon the plaintiff the necessity of proving a dishonest or malicious intention in fact, the evidence offered to rebut it is properly admissible under the general issue. See 1 Vend. Stark, on SI., 454; 2 Greenl. Ev., § 421. And “where the defence is, that the libel or words were published or spoken, not in the malicious sense imputed by the declaration, but in. an innocent sense, or upon an occasion which warranted the publication, this matter may be given in evidence under the general issue, because it proves that the defendant is not guilty of the malicious slander charged in the declaration.” 2 Saund. PI. and Ev., 2d ed, 325.
Within this principle are embraced words lawfully spoken by counsel; matter contained in a petition to Congress or the State Legislature; or in articles of the peace; or in judicial proceedings, and the like. 16., 325; 2 Greenl., § 421; 3 Steph. N. P., 2579. And it is well said that “The defendant, under tbe general issue, may give in evidence any matter which tends to disprove either the speaking of the .words or the publication of the libel, to bar tbe action or rebut tbe evidence of
Applying these principles to the case at bar, no satisfactory reason is perceived for the refusal to charge the jury that, if the slanderous words were uttered in the heat of passion or anger, that fact might be looked to in mitigation of damages. The • evidence was not, and in the state of the pleadings, could not have been, offered in justification. But from the proof in the record, as to the chastisement of his son by the plaintiff in error, it may be reasonably inferred that the son was a minor ; and looking to all the evidence, it is manifest that the slanderous words were spoken, or are alleged by the plaintiff in error to have been spoken, in the course of an altercation with a person whp, as he believed, was aiding his son to marry contrary to his wish. Now, if the father entertained the opinion that his son was about to form an injudicious or improper matrimonial engagement, or to unite himself in marriage with a woman whom he regarded as of doubtful character, and that the witness was using every effort in his power to bring about so unfortunate an alliance, was it unlawful in him — solicitous, as he doubtless was, for the welfare of his son — to remonstrate with the witness against his interference? Was it unnatural that, having heard of a scheme which he considered disastrous to his son's happiness, he should commence the conversation in an irritated mood, or that he should become irritated in the course of the altercation which immediately occurred between another son and the witness, and when the witness himself drew his knife and became infuriated? And if, in such a “storm of
In 1 Hilliard on Torts, 3rd ed., 405, § 70, it is said: “ It has been held that, in an action of slander, the defendant may show, in mitigation of damages, that he was incited and provoked to the utterance of the words, by some act or declaration of the plaintiff, contemporaneous, or nearly so, with them, if shown to have been the immediate and proximate cause or provocation. It is not sufficient, although it is necessary, to show that it occurred and was communicated to the defendant before the speaking of the words. But this may be proved by the defendant’s own declaration, and the jury is to determine whether the language which the defendant used
It has been ingeniously argued for the defendants in error, that it should have been proven by plaintiff in error, that the alleged provocation immediately preceded the speaking of the slanderous words, and was occasioned by the defendant in error herself, and not by another. In answer to this, it may be observed- that the authority cited does not require that the provocation should immediately precede the utterance of the words, but that the act or declaration of the plaintiff should be contemporaneous, or nearly so, with them; and, upon the facts in this case, it should have been left to the jury to determine whether the witness, to whom the words were' spoken, was the agent of defendant in error, and whether the plaintiff in error had shortly before discovered the correspondence with his son, and in good faith believed that it was the purpose of the defendant in error to inveigle
His Honor, the Circuit Judge, said, in his charge to the jury: “As to the amount of damages, this is a question for your determination, looking to all the facts and circumstances in the case;” and it has been urged, with much plausibility, that, as the jury was directed to look to all the facts and circumstances, this authorized the consideration of all matters of p'rovocation established by the proof. This would, perhaps, have been the case but for the special request of plaintiff in error for special instructions on this subject. The refusal to give the instructions asked for was equivalent to an expression of opinion, on the part of his Honor, that if the words were spoken in heat of passion or anger, the circumstance could not be looked to in mitigation of damages.
On the trial of this cause, the plaintiff in error offered, in various forms, to prove the character as to chastity of the family in which the defendant in error resided at the time of the alleged slander, and to show that, prior to that time, she resided in the same house with her mother and sisters, and that “the general reputation and belief of the community was, that their said house ^vas a common rendezvous, where lewd men met, and engaged in acts of adultery and fornication with the inmates of said house.” But his Honor refused to allow such proof to bo made; and it is insisted, for plaintiff in error, that this is ground of reversal.
*276 “It is perfectly well settled that, under the general issue, the defendant cannot be admitted to prove the truth of the words, either in bar of the action or in mitigation
If the plaintiff in error had pleaded a plea of justification, evidence that the defendant in error lived in a bawdy house, with knowledge of its character, would, perhaps, have been admissible to establish the truth of the plea; but without a plea of justification, such proof was clearly inadmissible. See 11 Hum., 507, 608. In Bush v. Prosser, 13 Barb., 221, where the slander charged the plaintiff with keeping a house of ill-fame, it was held that “evidence of unchaste and lascivious conduct of the plaintiff’s family, not establishing the offense, is inadmissible for any purpose;” and we hold, in this case, that the plaintiff’s action can not fail in consequence of the alleged bad reputation of her family. But, because of other errors in the record, let the judgment be reversed, and the cause remanded for a new trial.