62 So. 194 | Ala. | 1913
Charge A, given at the plaintiff’s request, was directed at defendant’s plea of justifica
It is next insisted that charge A, given for the plaintiff, was bad for the reason that it authorized the jury to consider a failure to sustain the plea, setting up, the truth of the words spoken in bar of the action, as an aggravation of the damages, whether the plea was or was not interposed in good faith. Under our system- of pleading, in actions of this nature, the defendant may not only plead specially the truth of the words spoken in bar of the action, but may also- give in evidence, under the general issue, the truth of words spoken or written, or the circumstances under which they were written or spoken in mitigation of the damages. Section 3746 of the Code of 1907; Schuler v. Fisher, 167 Ala. 184, 52 South. 390; Ferdon v. Dickens, 161 Ala. 181, 49 South. 888. “When the truth is pleaded in justification, failure to sustain the plea by proof may be considered by the jury as an aggravating circumstance in estimating damages. But the jury should be guided by the motive with which the plea is made; hence if it is interposed in good faith, under an honest belief in the truth of the matter published and with reasonable grounds for such belief, it cannot be regarded as an aggravation beyond the real injury sustained by the plaintiff. Indeed, it has been held that if a plea of justification is made in good faith, and evidence is introduced, honestly for the purpose of supporting it, such evidence should be considered by the jury in mitigation of damages, although it is insufficient to prove the truth of the plea.” — 25 Cyc. pp. 416, 417, and cases cited in notes 39 and 40. Indeed, this seems to be the rule which obtains in all the states except Alabama and perhaps two others. The Oregon and New York statutes, as to pleas in justification and the right to mitigate damages in ac
The trial court, however, found justification for giving said charge in the cases of Hereford v. Combs, 126 Ala. 369, 28 South. 582, and Poole v. Devers, 30 Ala. 672, wherein charges similar to this one were approved. These cases cite and rely upon the case of Robinson v. Drummond, 24 Ala. 174, wherein a similar charge was approved. It must be observed, however, that the court
The trial court gave the defendant considerable latitude in proving statements to him, not only by Jim Lockridge, but by others, as to the relationship- and intercourse between the said Lockridge and the plaintiff, and whether the court did or did not err in this report matters not, as said ruling was in favor of the appellant.
The court did not err, however, in declining to let the defendant prove the statements made by Lockridge to third persons as to his intercourse with the plaintiff, or his acts and conduct generally in leaving the cohimunity, or the reasons he may have given for doing so. This was hearsay evidence and was in no way binding
In an action of slander, the general bad character of plaintiff may be given in evidence, under the general issue, in mitigation of damages, notwithstanding the defendant may also have interposed the plea of justification.- — Pope v. Welsh, 18 Ala. 631. This rejected evidence of the defendant, however, as to the sayings,
In discussing the rule of evidence in mitigation of damages when malice or a want of probable cause is involved, Mr. Elliott, in his work on Evidence (volume 3, par. 2458), says: “There are various matters which it is said may be proven in mitigation of damages. We do not understand this expression to mean that any of the matters ought to, or can, deprive plaintiff of his right to recover such damages as he has actually suffered, blit rather that they may wholly or presently remove the presumption of malice which will thereby be indulged, and will therefore relieve the defendant from the imposing of punitive damages. It has been held that a defendant may prove in mitigation of damages that he received letters purporting to have been written by reputable persons, charging the plaintiff with certain wrongful acts; that these letters Avere in fact" forgeries; and that he, believing them to be genuine, was imposed upon and induced to publish the libel complained of, in the belief that it avus true.” Mr. Elliott takes the position that Avhere the element of good faith is involved, and the defendant is attempting to shoAV his good faith, he may do so by proving the statement to him of third persons, and that this evidence is not hearsay, but is original evidence; and he very clearly announces the rule out of which the distinction grows. Where the question is not Avhether the statements are true, but Avhether they were made by a certain person, the man to AAdiom they were made may testify that they
The defendant also had the right to show by the witness Posey the contents of the letter, which he claims was delivered to Lockridge by the plaintiff’s nephew in the store of and in the presence of the defendant, as this was corrobative of the defendant’s improperly rejected evidence that Lockridge received and showed him the letter.
The trial court, however, did not err in excluding what transpired between Posey and Jim Lockridge after they left' the defendant and went to see Ur. Yansant, or in excluding what transpired between the said Lock-ridge and Ur. Yansant as to the medicine.
The evidence as to the business relations between the defendant and the Lockridges, and what transpired as to purchasing the Lockridge interest by the defendant, was admissible to show that defendant had a motive forgetting rid of Jim and that the report was maliciously started. This evidence may be weak, but-its probative force was for the jury.
There was no error in so much of the oral charge as is insisted upon in brief of appellant’s counsel, and which is based upon assignment of error number 30. Nor in the refusal of defendant’s requested charge 7. Charge 6 was manifestly bad.
ft was a question for the jury to determine whether oi- uofc the plaintiff was entitled to recover punitive damages, and the trial court did not, therefore, err in refusing defendant’s requested charge 12.
There was no error in refusing charges-14, 16, and 17, requested by the defendant.
The amendment of the complaint by adding counts 5 and 6 was permissible. — Section 5367 of the Code of 1907.
Reversed and remanded.