No. 4799 | Cal. | Jul 1, 1876
The plaintiffs allege in their complaint that at the time of the speaking of the words set forth in the complaint, the plaintiff, Margaret, sustained a good name and character among her neighbors and acquaintances for moral worth, honesty, virtue and integrity. The defendant denied the allegation. The court below instructed the jury that if the defendant “unnecessarily denied in his answer the character of the plaintiff for chastity, without attempting to prove the truth of such imputation, this is an aggravation of the original slander.” The words set forth in the complaint are actionable per se, and the preliminary panegyric upon the character of the female plaintiff was entirely superfluous. It might have been properly stricken out on motion. It was, however, stated in a traversible form, and invited the denial by which it was met in the answer.
The fact that it was denied, and that so far forth an immaterial issue was joined, did not authorize the court to instruct the jury that if the traverse was mvnecessary they should for that reason, by their verdict, add to the amount of damages which the plaintiff would otherwise recover.
To deny that the female plaintiff had acquired a good character—by which we understand a good reputation— among her neighbors, is not equivalent to an allegation that her reputation was bad, in the sense of the rule which permits a jury to find 1 additional damages for a supposed wanton, malicious or reckless defense.
Judgment and order denying a new trial reversed, and cause remanded.
A rehearing was granted, after which the following opinion was delivered by the Court:
The certificate of the clerk is sufficient in point of form. The judge had authority to extend the time for filing the bill of exceptions, and the bill was filed within the time allowed. The objections taken by the respondent, are,
¡Remittitur forthwith.