Tibbs v. Brown

1. Where there are special pleas and a general traverse, there should be a verdict on each of the issues. 2. In an action for slander, evidence of the good character of the plaintiff is not admissible unless it has been attacked by the defendant. 3. A person cannot join in the commission of an injury, or lead others to do it, and then be a party plaintiff, in claiming compensation for it, from those whom he has misled. 4. Where slanderous reports, concerning the wife, are circulated at the instance or by the management of her husband, the husband and wife cannot maintain an action for the slander, nor can the wife sue alone.

Error to tbe Court of Common Pleas of Fayette county. This was an action of slander, for words spoken by the defendant, Lucinda Tibbs, concerning Lavinia Brown, one of the plaintiffs. The words charged were, “ you are an old whore, you had better go and sleep with Jack Webster again.” The defendant pleaded “not guilty,” and the following special pleas: 1st. And the said defendants for further plea in this behalf, by leave of the court, further saith, that the said plaintiffs ought not to have and maintain their said action in this behalf, because they say, that the charges contained in the said several counts of the plaintiff’s declaration were first published, spoken, and declared by the said Jackson Brown, one of the plaintiffs, and that the said charge ivas communicated by the said Brown and others upon, his authority and information, to the said Lucinda Tibbs, one of the defendants, and that the said Lucinda, relying upon the information of the said Jackson Brown, and believing the same to be true, innocently,_ and without any malice on her part, republished and spoke the same, and of this the said defendants put themselves upon the country. Whereupon they pray judgment whether the said plaintiffs, &c. 2d. And for a further plea in this behalf, the said defendants -further say, that the said plaintiffs ought not to have and maintain their said action in this behalf, because they say that the said words and the charge imputed thereby, contained and set forth in the plaintiff’s declaration, were spoken and published, and procured to be spoken and published, by the said Lucinda Tibbs, as in said declaration mentioned, by the fraud and covin of the said Jackson Brown, for the purpose of subjecting the Said Lucinda to an action for damages for the speaking of the said alleged slanderous words, and this they are ready to verify, wherefore they pray judgment,” &c. On the trial of the cause, the words were proved to have been spoken as laid, in the fall of 1848, or spring of 1849. On the part of defendants, it was proved that Jackson Brown, one of the plaintiffs, had originated the charge himself; said that he had caught several persons having intercourse with his wife, and informed Mrs. Tibbs, who is his mother, that he would not have married the damned old whore, if it had not been for her. It was also proved by defendants, that Jackson Brown said he had laid a plan to make Mrs. Tibbs pay for the words she had spoken; that he had laid a plan to get their “ stony batter,” (a small tract of land on which the defendants resided;) and that he had said he had offered his mother five dollars to catch his wife and Jack Webster. The plaintiffs then offered to prove the general good character of Lavinia Brown. Defendants object. Objection overruled, and exception by defendants. The plaintiffs then offered to prove the general character of Jackson Brown; that anything uttered by him was unworthy of belief, and that his character was known to Mrs. Tibbs. Defendants object. Objection overruled, and exception by defendants. On the trial, defendants requested the court to charge the jury— “ 1st. That if Jackson Brown, one of the plaintiffs, communicated to his mother, Lucinda Tihbs, the charge contained in the declaration, that her repetition of it, afterwards, ought to subject the defendants to only nominal damages. “ 2d. That if Jackson Brown himself originated the charge contained in the declaration, and communicated it to Lucinda Tibbs, who afterwards confiding in his said representation, repeated the same, he cannot complain of such repetitionhe cannot found a cause of action on a loss or injury towards which he has contributed by his own act. Having induced others to act on his information and representations, he is estopped from alleging to the contrary, for the purpose of maintaining this action, and the verdict should, therefore, be for defendants. ££ 3d. That if the plaintiff, Jackson Brown, communicated the charge contained in the declaration to his mother, for the purpose of entrapping her into a repetition of it, so as to enable him to maintain an action against her to recover damages, he cannot maintain such action. He cannot take advantage of his own wrong and fraud.” In answer to these points, the court say: “ 1st. If the jury believe that Jackson Brown originated the charges complained of in the declaration, and defendant, Mrs. Tibbs, merely repeated them, this ought to mitigate the damages, but the plaintiff has a right, if the evidence is believed, to recover more than mere nominal damages. “ 2d. We merely say, that if defendant did not originate the charges contained in the declaration, it will go in mitigation. How far, depends much, on the credence she gave to them. If she did not believe them, and afterwards repeated them, the reduction for want of capacity to originate, ought to be small. “ 3d. If there had been a conspiracy between Jackson Brown and his wife to entrap the defendants, for the sake of damages, no damages could be recovered; but unless his wife united with 'him, his designs or objects, will not prevent a recovery. The husband cannot be permitted to sacrifice the character of his wife for his own gain.” To this charge defendants except, and assign the same for error.