Symonds v. Carter , 32 N.H. 458 ( 1855 )

Fowler, J^*

Although malice is an inference of law, from the speaking of actionable words under circumstances not justifiable, yet express malice may well be shown to increase the amount of damages which the jury may properly award for such speaking. Frequent repetition of slander is stronger proof of malice than a single utterance; and although the jury must give damages only for the words which are the subject of the action, yet evidence is properly admissible of other words, which show the defendant’s malice towards the plaintiff, in defaming him in the manner charged in the declaration. It Í3 not necessary that the other words should have been spoken to the same individual 'as those mentioned in the declaration, or at the same time, or indeed before the commencement of the action, provided they were spoken so near the time of the actionable words, or were otherwise so connected with them as to have a legitimate bearing upon the disposition of the defendant’s mind at the time of uttering the slander complained of. Nor is any distinction to be made as to whether the additional words proved are or are not themselves actionable, though the weight of authority would seem to confine them to the same subject matter. 2 Phillips’ Ev. 246, and authorities; Mason v. Mason, 4 N. H. 110; Bodwell v. Osgood, 3 Pickering 379 ; Chesley v. Chesley, 10 N. H. 330.

Although words, when used in a manner and sense to impute guilt, imply, in contemplation of law, malice sufficient to support an action and entitle the plaintiff to a verdict, yet the amount of damages depends in part on the degree of malice ; the malignity and wantonness of intention to injure, with which the words were spoken. Rigdon v. Walcott, 6 G. & J. 413.

If there be evidence of express malice, the jury may give exemplary damages. Kinney v. Hosea, 3 Harrington 397.

To show malice, the plaintiff may prove that the words laid in the declaration were repeated on various occasions, though there be but a single count. Root v. Lowndes, 6 Hill 518.

The quo animo with which the words charged were spoken may be shown by conversations of the defendant relating to the original defamation, had subsequent to the commencement of the suit. Kennedy v. Gifford, 19 Wendell 296.

In slander, many words not alleged to have been spoken may be proved, to show the quo animo with which the words laid were spoken, and to evince the degree of malignity on the part of the defendant. Barlow v. Brands, 3 Greenleaf 248.

In Rustell v. Macquister, 1 Campbell 49, where the plaintiff offered evidence of actionable words other than those laid in the declaration, to the admission of which objection was taken, on the ground that only other words not themselves actionable could be admitted, Lord Bllenborough laid down the rule thus broadly:

“ Although there has formerly been such a distinction, it is not founded upon any principle. You cannot give in evidence special damage not laid in the declaration, but you may give in evidence any words, as well as any act of the defendant, to show quo animo he spoke the words which are the subject of the action; still it would be the duty of the judge to tell the jury that they must give damages only for the words which are the subject of the action.”

In actions at law for slander, evidence of actionable words not stated in the declaration may be admitted to show the malice of the defendant in uttering the words upon which the action is founded. Chesley v. Chesley, 10 N. H. 330.

Where malice is not essential to be proved, it may be, and usually is, given in evidence to increase the damages. 2 Saunders’ PI. & Ev. 332, (808;) Bromage v. Prosser, 4 B. & C. 257.

The true rule seems to us to be, that when the words are actionable of themselves, and are not uttered upon a lawful occasion and with justifiable motives, the law will infer malice, so as to enable the plaintiff to recover damages, although none be proved. But, of this technical or legal malice, as it may be termed, there may be various degrees, as indicated by the manner in which and the circumstances under which the slanderous charges were made. And other circumstances may exist, which show not merely technical malice, but actual hatred and revengeful feelings, the malignant design of the slanderer to do the utmost possible injury. Eor acts done or words uttered under such different circumstances, and with such different motives and purposes on the part of the slanderer, the same measure of damages cannot be properly awarded.

Actions of defamation for slander are designed not only to furnish some indemnity, so far as money can do it, for the injury inflicted, but to vindicate the character of the person unjustly assailed, and to protect him or her against a repetition of the wrong or outrage. The question is, not only what it is proper for the injured party to receive for the wrong done him, but what it may be just, under all the circumstances, that the wrongdoer should be required to pay.

If the injury to the plaintiff were the only ground of action, there could be no justification of slander, for the injury can hardly be less where it is uttered upon a lawful occasion, and with justifiable purposes, than when uttered without such occasion and purposes. And that malice and a malignant disposition to injure are of the very gist of the right to recover, is evident from the consideration, that although the slander may have been uttered upon a lawful occasion, and from apparently proper motives, yet, if it be shown to have been spoken maliciously and with intention to injure, the lawful occasion furnishes no ground of defence.

It is, therefore, right that juries should make a discrimination in the damages they award, according to the circumstances, position, conduct, motives and purposes of the slanderer disclosed in the proofs, and they may rightfully award more severe damages for the willful, designed, malicious and mischievous circulation of a story known to be false, and repeated with a design to injure, than for the idle and garrulous repetition of a tale supposed, or even believed without examination, to be true. And such damages are awarded, not for the other words or acts that may be-permitted to be proved, as tending to show the malice with which those laid were uttered, but for the deeper malice and malignity of mind and heart, attending the utterance of the words laid themselves. If the defendant has indicated his intention to injure, by his direct declarations, by repetitions of the slander, or his other acts, having a tendency to show malice in its common acceptation of personal ill will, that may be shewn in evidence, and the fact that the words or acts indicating this depraved and malignant disposition of mind are themselves slanderous or actionable in any way, will not exclude them.

Such being the current of authority, both in this country and in England, and such our views of the principle and reason of the law, we are of opinion that the evidence in this case was properly admitted, and that the instructions of the court below to the jury were correct.

That the words, “ she has had two or three little ones by him,” if thereby the defendant intended to charge the plaintiff with the crime of fornication, followed as a consequence by the conception or giving birth to two or three bastard children, are actionable of themselves, seems clear beyond all doubt, and it was properly submitted to the jury to find what the defendant intended by the use of them.

There must, therefore, be

Judgment on the verdict.

* Pebmt, O. «F., did not sit.