10 Wis. 359 | Wis. | 1860
By the Court,
Although the appellant’s counsel makes several points in their brief, yet as only one was insisted upon in argument, and as the others seem clearly untenable, we shall dispose of the case with reference alone to the point argued. The question may be stated thus: Is evidence of the existence at and before the time of the publication of a libel, of public and common rumors and reports to the effect, that the plaintiff was guilty of that with which he was charged in the libel, which rumors and reports were before the publication communicated to the publishers, admissible in mitigation of damages in an action against them, where they assume to assert the charge themselves, without stating the existence of such rumors or reports, or referring to them as authority? Though amid the various and conflicting decisions to be found in the English and American re
Here, however, the defendants make the charge their own, and give it a new and permanent form of existence, which it had not before. The offence of which they are guilty, is one which did not befor.e exist. The offer by the defendants to prove the existence of the rumors in mitigation of the damages, is an admission on their part of the falsity of the accusations ; and is not the guilt of him who deliberately prints and publishes of another slanderous words previously spoken, though not by himself, equal in degree with that of him who invented and first spoke them ? Our perceptions of the different degrees of moral turpitude or wrong are not sufficiently nice to enable us to discover the difference. If there be any, we should say that the balance, in a moral point of view, is
Williams vs. Miner, 18 Conn., is a case where the offer was to prove facts and circumstances within the knowledge of the defendant at the time of speaking the words, which tended to prove the guilt of the plaintiff, and which the court say “might and probably did excite reasonable suspicions of guilt ” in the defendant’s mind, and is a fair illustration of the rule. The alleged slanderous words were, “ he is a thief, and stole the hay and hayseed from Mrs. Dow’s barn.” The facts offered to be proved were, that the plaintiff took and converted to his own use the hay and hayseed of Mrs. Dow, without her knowledge and consent, though under such circumstances asj not to amount to a larceny. The court say, that the circumstances of the taking were such as, by persons
The case of Bailey vs. Hyde, 3 Conn., 463, is one where facts and circumstances were sought to be shown, by the admission of the plaintiff; and although such proof was held in general to be proper to rebut the presumption of malice, yet as the facts contained in the admission were unknown to the defendant at the time of the speaking, and therefore could not diminish the presumption of the malice, the testimony was held to be improper. Rigden vs. Wolcott, 6 Gill & John., 413; Willson vs. Apple, 3 Ham., 270; Reynolds vs. Tucker, 6 Ohio St. R., 516, are all cases where evidence of such facts and circumstances as show a reasonable ground of suspicion of the truth of the matters charged is held admissible. Reynolds vs. Tucker, was an action of slander for words spoken against the chastity of the plaintiff’s wife, and it was held competent under the general issue, in mitigation of damages, to prove that the wife and an unmarried man had lived together alone in one house, where the knowledge of such mode of living had come to the defendant before the speaking of the words. The other authorities cited are manifestly cases where the proof was allowed for the purpose of showing that the reputation of the plaintiff was generally bad before the slan
In the case of Leicester vs. Walter, 2 Camp., 251, the proposition of the defendant’s counsel was to prove “ that before and at the time of the publication of the libel, there was a general suspicion of the plaintiffs’s' character and habits, and that his relations and former acquaintance had on this ground ceased to visit him,” &c., and not to prove alone that rumors of the particular charge contained in the libel had generally prevailed at and before its publication. Sir James Mansfield, C. J., in deciding the point, says: “ The plaintiff’s declaration says, that he had always presented a good character in society, from which he had been driven by the insinuations in the libel. Now the question for the jury is, whether the plaintiff actually suffered the gravamen or not. Evidence to prove that his character was in as bad a situation before as after the libel, must therefore be admitted.”
In - vs. Moor, 1 Maule & Sel., 284, the defendant on cross-examination of the plaintiff’s witness, who proved the words, was permitted to ask whether he had not heard reports in the neighborhood, that the plaintiff had been guilty of similar practices, (it being an action of slander imposing a specific charge of unnatural practices to the plaintiff.) The reason of allowing the evidence is given by Lord Ellenbor-rough, in the opinion. He says: “ Certainly a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished; and it is competent to show that, by evidence.” The same is true of the case of Galloway vs. Middleton, et ux, 2 A. K. Marsh., 743. The action was brought by Middleton and wife against Galloway for uttering and publishing slanderous words, importing
It did not appear in this case from the plaintiff’s showing that there were any general rumors as to his want of integrity in conducting the warehouse business, which were the basis of the libelous publication, or to which it in any manner referred. The offer was not to prove that the plaintiff’s general character at and before the publication was bad, nor that he was generally reputed in the neighborhood to be dishonest or suspected of a want of integrity in conducting his warehouse business, but the question was whether there were any common reports in relation to the plaintiff in connection with Hadley and Hopkins, as to his honesty and integrity in conducting the warehouse business, &c. The existence of unfavorable and defamatory rumors and reports is one thing, and a real loss of character and standing in community quite another. Everybody knows that such rumors and reports may be afloat without real injury or detriment to the person against whom they are circulated, and he may not for that reason feel called upon to notice or concern himself about them; but because some slanderer, whom no one believes, sees fit to gratify his malice in the harmless business of inventing and speaking them, are they to be brought into a court of justice as an excuse for him, who deliberately transfers them into a printed handbill or circular? We think: not. It seems to us, within the authorities cited that the least that a defendant under such circumstances could be permit
It is unnecessary for us to inquire whether or not a defendant in a case where the charge is made as of his own knowledge, should in mitigation of damages be permitted to prove that the matters charged were communicated to him by a credible person professing to know them; or whether or not rumors and reports as to the matters charged, should be received for the same purpose where the offer of them .is accompanied by an offer to prove their truthj as neither of these questions are properly raised by the record.
The judgment of the circuit court is affirmed with costs.