Bragg v. Hammack , 155 Va. 419 ( 1930 )

Holt, J.,

concurring.

I concur in the conclusion reached by the court in this case, but I do not find myself in accord with its position as to the seventh assignment of error.

The publication complained of was circulated during a hot political campaign, and it was necessary that the plaintiff, in order to protect himself, should make some reply, and that he did. His reply was privileged, and even if the privilege was only a qualified one it was not abused, and so is still privileged. What the defendant in this case has sought to do is to show that this reply, which was also published, was an additional circulation of the libel of the plaintiff himself, and of course the underlying purpose was that it should be considered by the jury in diminution of damages. • I think this position wholly untenable, and that this publication by the plaintiff should not have been admitted in evidence, it was irrelevant to every issue here and if admitted the jury should, in some clear-cut way, have been told it was not to be considered by them for any such purpose.

Campbell, J., concurs in this opinion.