Titus v. . Sumner , 1870 N.Y. LEXIS 150 ( 1870 )

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.