Summary
In Titus v. Sumner (44 N.Y. 266) evidence was admitted that the same slanderous charge was made by the defendant at times prior to those set out in the complaint, and the ruling was sustained by the Commission of Appeals solely on the ground that at the time of the trial an action for such prior slander could not be maintained, inasmuch as the same was barred by the Statute of Limitations.
Summary of this case from Burkan v. Musical Courier Co.Opinion
Submitted September 29th
Decided December 29th, 1870
E.D. Wagner, for the appellant.
George Becker, for the respondent.
It is enough to say that the refusal at circuit to permit the witness on his cross-examination to testify whether he believed any of the statements made by the defendant about the plaintiff's daughter was harmless, inasmuch as the witness during the same cross-examination testified that he did not believe she was poisoned. The offer to prove by the same witness during that cross-examination that the plaintiff's reputation was not affected by these statements was properly rejected for two reasons, viz.: The evidence, if admissible, was a part of a substantial defence to a cause of action already established, which the court had the right to exclude until after the plaintiff had rested his case. It was not an offer to show that the plaintiff was not injured by reason of any defect in his own reputation, nor was any error committed in admitting evidence of the words spoken in 1861 and 1863. Each, if actionable, was outlawed, and admissible upon the question of malice, and hence the order denying a new trial must be affirmed.
The first exception relates to the defendants offer to prove by the witness that he did not believe the charge made by the defendant and that the plaintiff's reputation was not injured, which was excluded and defendant excepted. The witness was afterward asked whether he believed the charge, and answered that he did not. This was an admission of the evidence which had been previously excluded. It is not necessary, therefore, to consider the legality of the subject-matter of the offer as evidence.
The defendant next offered to prove that the reputation of the plaintiff was not affected by the slander. The offer was excluded and the defendant excepted.
The alleged slanderous words were actionable in themselves. The offer involved the proving of the opinions of witnesses. It was a subject concerning which witnesses could not state any facts, and their opinions must be very uncertain. Witnesses might believe that the slander did or did not affect the plaintiff's reputation; but such proof would not amount to any guide as definite and certain evidence. The appellant relies on the case in 3 Denio, 346; Keenholts v. Becker. In that case the words were not actionable per se. It was there held, where a person who had heard the assertion by rumor, and did not hear the defendant utter the alleged words, that special damage had not been proven, although such person had withheld his kind offices by reason of the rumor, and made the plaintiff pay for articles that he would otherwise have furnished gratuitously.
That is not the principle here involved. These words were actionable per se, and there was no attempt to prove any special damage. The words here spoken are injurious by their natural effect, and the malicious or inconsiderate defendant who wantonly used them, must, as he ought, stand before the court to receive a verdict in punitive damages. A want of previous good character by the plaintiff, is a different case, and affects the amount of his recovery.
I doubt the doctrine of Keenholts v. Becker on the point there at issue, but the learned judge concedes that the principle is not applicable where the words are actionable per se, as in this case.
The plaintiff was allowed to prove that the defendant had made the same slanderous charge on some prior occasions in 1861 and 1863, the action being for words spoken in 1864, and the trial having taken place in 1867. The defendant has raised a point as to the admission of this evidence.
Such evidence appears, upon authority, to be admissible to show the malicious intention of the slanderer, where the words sought to be proven, were spoken so long previously that another action could not then be maintained therefor, the plaintiff being barred by the statue of limitations. Inman v. Fowler (8 Wend. R., 602, 609), Judge SAVAGE in that case disapproved of the rule, but cites the cases in which such evidence has been sustained, and concludes with these words: "Upon authority, however, such words were properly received.
I think we should follow the established rule, notwithstanding the criticism. The defendant relies on the case in Howard v. Sexton (4 Comstock R., 157), to sustain his exception. That case is authority for the rule that you shall not prove a slander of a different, or even of an uncertain charge, to sustain that laid in the complaint. An action for accusing the plaintiff of perjury, will not admit of proof for the purpose of establishing malice that the defendant, on another occasion, said that the way the plaintiff got the defendant's money was no better than robbery. Judge GARDINER, delivering the opinion of the court in the case last cited, says: "The plaintiff may show a repetition of the charge for which the action is brought, but not a different slander for any purpose." (Page 161.) This remark is an indorsement of the rule asserted in 8 W.R.
The judgment appealed from should be affirmed with costs
Judgment affirmed with costs.