Potter v. Thompson , 1856 N.Y. App. Div. LEXIS 70 ( 1856 )

By the Court, T. R. Strong, J.

There is abundant evidence of the speaking, by the defendant, of a portion of the words as laid in the complaint, and under such circumstances, and in such connection, as thereby to impute, and to convey to the minds of the hearers, that the plaintiff had committed the crime of larceny. It was objected at the trial, and that objection is urged here, that this evidence does not sustain the complaint, inasmuch as it relates to periods several months subsequent to the times of speaking the words stated in the complaint; but there is no force in the objection. The time of the uttering of the slander as alleged in the complaint, might be departed from in evidence, and a variance between the complaint and proof, in that respect, is wholly immaterial. A cause of action was therefore established entitling the plaintiff to damages.

But the amount of damages allowed by the jury is, I think, greatly beyond what the case warranted, and so excessive as to evince that the excitement of the trial, or some other cause, has misled the jury and prevented them from being governed in regard to the damages by their deliberate judgment. The slander was uttered by a married woman, whose husband is sued with her, and he must share with his wife the consequences of the slander, which should impose a narrower limit to the -measure of damages so far as they are exemplary; the evidence does not show that the wife was influenced in speaking of the plaintiff by a desire to do him an injury; she manifestly entertained no actual ill will or unkind feelings towards him; what she stated was the simple expression of her own convictions; circumstances were proved which were calculated to excite suspicions of the plaintiff; and it was proved that the plaintiff himself, on one occasion, in view of the circumstances, stated that he did not blame her, and acknowledged her kindness in first speaking to him on the subject. In addition, the declarations of the plaintiff in regard to the mode in which he obtained a watch in Hew York; his consultation with the “ spirits his remark that he did not blame persons for thinking he had committed the theft: and the testimony of the witness Devine; and other circumstances, all go to mark this case as one for moderate damages; and so it appears to have been regarded by the learned justice at the trial, as is evident from the remark made by him in his charge, “ that it was not a case where the jury would be likely to feel called upon to give much beyond actual damages by way of punishment to the defendants.”

[Cayuga General Term, June 2, 1856.

It is only in special and rare cases that the court will grant a new trial in an action for slander because the damages allowed are excessive; where the amount is so large as to be clearly and grossly unjust, and to make it apparent that it is the result of excitement and passion or some other influence than that of the law and the evidence. I am forced to the conclusion that this is such a case ; that the verdict is for more than three times what it should have been, and that it is the duty of the court to set aside the verdict and allow a new trial, unless the plaintiff will reduce the verdict as hereinafter stated. (Clapp v. Hudson River Rail Road Company, 19 Barb. 461.)

A retrial is granted, on payment of costs, unless the plaintiff within twenty days stipulates to reduce the amount of the verdict to $200, in which case the motion for a new trial is denied.

T. R. Strong, Welles and Smith, Justices.]