Markham v. Russell

Bigelow, C. J.

The effect of the ruling of the court was to withdraw from the consideration of the jury the question of damages. This was clearly erroneous. The evidence proved not only the utterance of slanderous words by the defendant, but also that they were spoken maliciously. Although it is true that no damages could be awarded for words spoken at any other time than that set forth in the declaration, yet it is also true that proof of the utterance of such slanderous charges on other previous occasions was competent, as- showing that the words charged were spoken maliciously, and thus tended to aggravate the wrong and injury for which the plaintiff sought to recover compensation in this action. It certainly cannot be contended that words spoken with malice and ill will towards a party *575 inflict no greater injury than those uttered innocently, through mistake or with no purpose to traduce and defame character, and that they are to be measured with the same rule in estimating damages. Express malice aggravates the wrong done by the utterance of slanderous words. Nor can we think it sufficient reason for restricting a party to the recovery of nominal damages in an action like the present, that the person to whom the words were spoken testifies that the character and reputation of the plaintiff was not impaired or injured in his estimation by the slanderous charges uttered by the defendant. It was for the jury to determine whether this statement was true, and, if they believed it to its full extent, it did not necessarily lead to the conclusion that the plaintiff was entitled to merely nominal damages. Undoubtedly the material element of damage in an action for slander is the .injury done to character. But it is not the sole element. A jury have a right also to consider the mental suffering which may have been occasioned to a party by the publication of slanderous words. When an injury has been inflicted on the reputation of a party sufficient to sustain an action at all, he has a right to recover a reasonable compensation for the distress and anxiety which may have been the natural result of the legal wrong which has been done to him, 2 Greenl. Ev. § 267. In this case, it may be that the plaintiff had good reason for supposing that his reputation was injured in the opinion of the witness to whom the words were uttered, and he may have undergone great mental anxiety and distress by reason thereof.

In all trials at common law, a jury are the proper judges of the damages. It can rarely happen that the question can be rightly withdrawn from their consideration. It is only when a mere technical invasion of legal right is shown, unaccompanied by any actual injury to person or property, that the court is authorized to instruct them to return a verdict for nominal damages only. The case at bar did not fall within this category. Sheffill v. Van Deusen, 13 Gray, 304 , presented a very different question. There the plaintiff failed to prove any legal cause of action, and had no claim for damages, either nominal or substantial. Exceptions sustained.