Shaw v. Shaw , 49 N.H. 533 ( 1870 )

Bellows, C. J.

The testimony reported iu the case, appears to have been received without objection, and the only question is, whether the defendant ought to have been allowed to ask the witness if he ‘ ‘ understood ” the defendant to make any imputation upon the female plaintiffs character for chastity.

If the witness had been called to prove the speaking of the words laid in the declaration, and he had proved words which "were ambiguous, the plaintiff might show that they were used in their actionable sense, and that they were so understood by the witness. The reason assigned for thus admitting the proof, of how they were understood by the hearers, is, that unless they were understood in an actionable sense, the plaintiff could not have been injured, as if the word, had been spoken in a foreign language, which the hearers did not understand. See Smart v. Blanchard, 42 N. H. 148 and cases cited. It will be borne in mind, however, that this testimony as to how the hearers understood the words, can have no legal tendency to show in what sense they were actually used. Smart v. Blanchard, 42 N. H. 149, before cited.

From this it follows, logically, that in respect to words proved merely to show the existence of malice, they not being laid in the declaration, the sense in which they were understood by the hearers, is totally immaterial, and, therefore, such proof is properly rejected. The purpose of proving the speaking of such words, is to sIioav malice in the defendant, and the sense in which he used them is the material enquiry. If he used them maliciously, the jury may consider it in determining with what degree of malice the words laid in the declaration were spoken, — although damages can be awarded only for the latter words.

It is obvious, then, from these principles, that the understanding of the hearers, as to words not laid in the declaration, can throw no light upon the motive of the speaker, or the meaning of the Avords he used.

Again, we think, there is no such ambiguity in the words used, as to justify the court, in the exercise of a sound discretion, in admitting proof of the understanding of the hearers as to their meaning.

Such testimony, should in all cases be cautiously received, because it has a tendency to mislead a jury; and it should not be admitted at all, Avhen the meaning of the words is reasonably plain, as we think they are in this case.

There must, therefore, be

Judgment on the verdict.