Johnson v. Brown, 57 Barb. 118

Johnson v. Brown

57 Barb. 118 | N.Y. Sup. Ct. | 1870

By the Court, Johnson, J.

The plaintiff was properly allowed to amend her complaint upon the trial, by enlarging her claim for damages. This did not in any respect alter the cause of action stated therein, or change the substantial rights of the parties as they existed previously. Its only effect was to enable the plaintiff to recover whatever damage she might establish by her proof, beyond what had been previously claimed. It was clearly a matter resting in the discretion of the justice at the trial, and no exception will lie to the exercise of such discretion. (Vibbard v. Roderick, 51 Barb. 616. Bedford v. Terhune, 30 N. Y. Rep. 453.)

It was also proper to allow the plaintiff, after giving evidence to prove the speaking of the actionable words alleged in the complaint, to prove the repetition of the same slanderous charge on other occasions, and subsequent to the commencement of the action. The true rule, I think, is that laid down by Gardner, J., in Howard v. Sexton, (4 N. Y. Rep. 157.) The plaintiff cannot prove the speaking of other and different actionable words, charging a different offense; but may prove the repetition of the same charge. This is allowed, not for the purpose of proving a general malicious feeling or intention, on the part of the defendant, toward the plaintiff, but to show the degree of malice with which the slander involved in the action was uttered. The repetition of the same charge was offered, and allowed for this purpose only.

The judge charged the jury that it did not change the actionable nature of the words, even if they were spoken with the qualification added by the defendant in his testimony—“if reports were true.” The exception to this part of the charge is not well taken. The charge was *127equally slanderous and actionable, whether made in that form or in the form stated by the" plaintiff’s witnesses. ETor could the mere fact of uttering the actionable charge in that form, go in mitigation of the damages. The request of the defendant’s counsel was, that the jury should be charged that in case they found the words were uttered with that qualification, it might be taken in mitigation of damages. This was properly refused. The mere form in which a slanderous charge is uttered, has nothing to do with the question of damages. • The motive, in making the charge, is an essential element in estimating damages. But that formed no part of the request or refusal.

[Monroe General Term, March 7, 1870.

These are the only points made by the defendant’s counsel, except the point that the damages are excessive, which is clearly untenable. There is no error, and a new trial must be denied, and judgment ordered for the plaintiff, on the verdict.

Johnson, E. D. Smith and. J. C. Smith, Justices.]