Botelar v. Bell ( 1851 )

Le Grand, C. J.,

delivered the opinion of the court.

This is an action of slander, brought by the appellee for word spoken by the appellant, imputing to him insolvency, he then conducting the business of a miller. The defendant pleaded the general issue, justification, and limitations. The action was brought on the 8th of August 1849.

The first question for the consideration of this court is, that presented by defendant’s first exception. To inflame the malice, the county court permitted the plaintiff to give evidence of other declarations, made by the plaintiff more than a year prior to the institution of the suit; and the question is, did the county court err in so deciding? We think not. The statute of limitations does not apply to evidence, but to the cause of action; and, as malice is the gist of the action, it is competent for the plaintiff to establish it by showing the declarations of defendant, both before and after the speaking of the particular words which are laid in the declaration as the cause of action. There are instances in which the statute applies to evidence, such as in the case of bonds, but then this is owing entirely to the express language of the act, and not to the general principles of the law of evidence. We are of opinion the court rightfully admitted the testimony.

The second exception presents the question, how far the defendant is permitted, in mitigation of damages, to show that the plaintiff has been in the habit of villifying him? The county court, in the case before us, refused to allow the defendant to give evidence of the language of the plaintiff, “unless the defendant could show further, that at the time of the utterance of the language charged in the declaration, or proved upon trial, in aggravation of damages, or about the time of uttering the same, the defendant was influenced in uttering the same by the language so offered, to be given in proof.”

The defendant proposed to prove, that from time to time, from 1845 to July 1848, the plaintiff had imputed to him insolvency, and, particularly, that in July 1848, it was communicated to defendant, that the plaintiff had said he, the defendant, was broke, and that the defendant was very much irritated by the communication; and that defendant was frequently told of opprobrious language used towards him by the plaintiff, and was always irritated by it.

Apart from the declarations of the defendant himself, we do not see how it were possible for him to prove, directly, he was influenced to the use of the language with which he is charged, by that of the plaintiff. In the absence of his own declarations, it is matter to be inferred by the jury, from all the circumstances surrounding the case. The requirement, therefore, of the court that he should give such evidence, was such, as it was impossible to comply with.

The words charged in the declaration are alleged to have been spoken on the 20th of July 1848; and the communication made to the defendant by the witness Clagget, was made sometime in the same month. Under the rules of evidence, was such testimony admissible for the purpose for which it was offered? We think it was. We are aware it has been held in England, and in several of our States, that to enable the defendant to prove opprobrious language of the plaintiff by way of showing provocation, it is Incumbent for him to-have acted immediately under the irritated state of his feelings produced by the communication. Indeed, some of the decisions have gone so far, as to deny altogether the right of the defendant, to show he has been vilified by the plaintiff. See May vs. Brown, 3 Bar. and Cres., 113. McAlexander vs. Harris, 6 Munford, 465. Goodbread vs. Ledbetter, 1 Derereux and Battle, 12. Steerer vs. Beckler, 1 Miles, 146.

But, Lord Chief Justice Denman, in the case of Watts vs. Frazer and Moyes, 7 Carr. and Payne, 369, held it to be competent for the defendant to give in evidence libels published months before the one charged on the defendant, to show a provocation for his conduct; his lordship observing, he would caution the jury not to take them as a set-off of one Libel against another; but that, if the defendant published his articles under the provocation of a previous publication, they might consider that, to a certain extent, the plaintiff had brought the mischief upon himself. There is a vast deal of good sense in this view, and it is clearly promotive of the ends of justice, which should be the aim and purpose of all courts of judicature. Surely the man who indulges in slanderous language towards another, when he has been provoked to it by a long series of abuse, is less culpable in the eye of the law and of morals than he, who from a fiendish dislike to his fellow man, or from a spirit of idle gossip, invents slanders against his neighbor. And our courts have justly taken this view. In the case of Wolcott vs. Rigden, 6 Gill and John., this court allowed the defendant to give in evidence all the attending circumstances, with the view to the mitigation of the damages; and in the case of Davis vs. Griffith, 4 Gill and John., held, that the defendant, in mitigation of damages, might show opprobrious language of the plaintiff employed towards him prior to the libel sued upon. In that case it does not appear, when it was the plaintiff denounced the defendant, but the facts show he was denounced because of testimony given in the month of March, and the libel of defendant was not published until the 25th of May following. Looking to the spirit of these decisions and the good sense which is their foundation, and the manifest justice of'their principles, fortified, as they are, by the high authority of the learned late chief justice of England, we dissent from the court below in its ruling on the second exception, and are of opinion, that it was competent, in mitigation of damages, for the defendant to show the manner of language held towards him by the plaintiff; it being, of course, always a question for the jury to determine, whether the language used by the defendant was used because of the provocation offered by the plaintiff, or was the result of mere wantonness and maliciousness of feeling, and corruption of heart. Where the plaintiff has provoked the slanderous words of the defendant, his claim to damages ought to be diminished, to use the language of the court in Child vs. Homer, 13 Pick., 511, “Such a claim must he brought forward with a very bad grace, especially when the party complaining was the one who commenced the controversy.”

Judgment reversed and procedendo awarded.