117 Me. 1 | Me. | 1917
Action for slander in which the plaintiff recovered a verdict of $1475. The case comes to this court on the defendant’s general motion for a new trial, and on his exceptions to the refusal of certain requested instructions and to the giving of certain other instructions.
The slander complained of is that the defendant said of and concerning the plaintiff “he forged my name to that note,” meaning a certain note for fifty dollars, dated September 12th, 1916, on four months, payable to the order of the Rumford Trust Company, and signed by the defendant and also by Thomas W. Penley and the plaintiff. The defendant pleaded the general issue with a brief statement thereunder in which he stated that at the time of the slander he had forgotten that he signed the note, but that his signature thereto is genuine, “and that any statements he may have made to the plaintiff or others concerning the forging of said note were made in good faith and without malice and with an honest belief in their truth.”
The evidence was not materially conflicting. About a week before the maturity of the note the defendant, having received notice thereof, called at the bank and asked to see the note and it was shown to him. Thereupon, he immediately went to the plaintiff’s store, called him out to the sidewalk, and then and there in a loud voice and angry manner and in the hearing of several persons accused the plaintiff of forging his name to the note. There was evidence that the defendant subsequently said to others that the plaintiff had forged his name to a note. In attempting to explain why he so accused the plaintiff, after he had seen the note at the bank with his signature thereon, the defendant said, “I didn't look particularly at the signature, I looked to see if there was a note there.” And he testified that from an examination of the note four days before the trial he was satisfied at once that his signature thereto was genuine; and he then wrote the plaintiff a letter in which he admitted that fact, and said that he proposed to have the letter published in the Rumford Falls Times. It was not published.
1. The defendant seasonably requested the following instruction: “If the statements made by the defendant were made with an honest belief in their truth, no actual malice should be inferred, and only such damage as has been actually sustained can be recovered.” To that request the court said: “I decline to give you that instruction, gentlemen, as it is worded, but I do instruct you that if the statements made by the defendant were made in an honest belief in then’ truth, and he used the same degree of care that an ordinary prudent man would use, and should use, before accusing the plaintiff of crime, and he could not discover, by the exercise of that care, that the signature to the note was his signature, then no actual malice can be inferred; but it does not he in the mouth of that man to shut his ej^es to the truth so that he does not see. If the defendant knew, or should have known, that that was his note, then it is no excuse for him that he shut his eyes and would not learn the truth.” The giving of that qualified instruction instead of the specific instruction requested, is the ground of the first exception.
It is to be observed that the last clause of the request, to wit, “and only such damage as has been actually sustained can be recovered,” was not given at all. Two questions, therefore, are open under this exception, first, was it error to omit the last, clause of the request? and, second, has the defendant any reasonable ground of complaint that the first part of the request was given with the qualification as above quoted?
In all actions for libel or slander malice is an essential element of the plaintiff’s case. But where the defamatory words spoken impute the commission of a crime, and they are not justified by proof of their truth, or that they were spoken on a privileged occasion, the law in such case presumes that they were spoken maliciously. The malice so presumed is called malice in law, and is of itself sufficient to support the action. In the case at bar the defamatory words charged the plaintiff with the crime of forgery. It was a false charge, not privileged either absolutely or qualifiedly, and it was libelous per se. Upon that state of facts the plaintiff’s cause of action was conclusively established, and he was entitled to recover some damages. What damages? In this State, two classes of damages may be recovered in actions for libel and slander, to wit, actual or compensa
2. The defendant also requested the following instruction: “The fact that the defendant has made a retraction, should be considered in mitigation of damages.” To that the court said: “As a rule, a retraction does mitigate the damages, but it is the circumstances under which it is made. Here in this case you should consider that. The note was examined by the defendant. He had been sued by the plaintiff, and four days before this court sat he wrote a letter saying that the statement was false. If he had made the retraction within
The retraction mentioned in the request evidently refers to the letter written by the defendant to the plaintiff four days before the trial, and three months after the suit was begun. It is by no means free of doubt if that letter, written so long after suit brought, was admissible at all in mitigation. It has been held that an apology or retraction must be made or offered before the person defamed has sought redress in the courts. Association v. Tryon, 42 Mich., 549, 4 N. W., 267. But in Turton v. N. Y. Rec. Co., 144 N. Y., 144, 150, it is said: “We are not prepared to say that a retraction published in good faith after the commencement of an action for libel can under no circumstances be proved in mitigation of damages,” adding that “if the defendant promptly after the suit was commenced published a fair and full retraction, we see no reason to doubt that such publication could be proved and submitted to the jury to be considered by them upon the question of exemplary damages.” The claimed retraction in the case at bar was communicated only to the slandered person, and, if admissible at all in mitigation, it could be of but slight effect. In Turner v. Hearst, 115 Cal., 394, 47 Pac., 129, the court said: “The defendant . . . having sought in mitigation of damages to prove the publication of an adequate retraction, it was proper for the court to instruct the jury that when a defendant relies upon such retraction in mitigation of damages, to avail him it should appear that it was fully, fairly and promptly made, and is such as an impartial person would consider reasonable and satisfactory under the circumstances of the case. The question of the sufficiency or
The Motion.
It is urged that the damages awarded against the defendant are excessive, and it is upon that point alone that the motion is to be considered. No special damages were claimed, and the evidence from which the jury could have assessed general damages to any considerable amount is comparatively slight. No one appears to have regarded the defendant’s accusation against the plaintiff seriously. It seems evident, therefore, that the principal part of the verdict must have been awarded as punitive damages. That the jury were authorized by the facts and circumstances disclosed to include in their verdict some punitive damages is undoubtedly true, but such damages should be awarded in the exercise of a sound discretion taking into consideration all the circumstances in mitigation or aggravation. A study of the case convinces us that the damages awarded are so manifestly excessive as to indicate that the jury did not exercise a sound discretion free from bias or prejudice. It is the opinion of the court that the sum of S800 would be adequate as the damages, both actual and punitive, to be awarded against the defendant in this case. Accordingly the entry will be,
Exceptions overruled. The motion overruled, if the plaintiff, within thirty days after the certificate is filed,, remits all of the verdict in excess of $800, otherwise the motion is sustained.