Hutchinson v. Wheeler

Slander. Evidence. In an action of slander for imputing a crime, the defendant may give in evidence under the general issue, in mitigation of damages, such facts as tend to show that at tho time of speaking the words he believed they were true and that ho spoke them in good faith. But such facts are not admissible for that purpose under such plea, if they amount to proof of.the actual truth of the words charged. In an action of slander for charging the plaintiff with poisoning the defendant’s cow, held, that under tliejgeneral issue it was competent for the defendant to show in mitigation of damages, as tending to prove his belief in the truth of the words charged, that his cow had been poisoned; that for some time previous to the loss of the cow, there had been a bitter hostile feeling on the part of tho plaintiff towards the defendant; that the defendant having at a former period poisoned the plaintiff’s dog, tho plaintiff had several times threatened to pay the defendant in his own coin; that the defendant had attempted to instigate a malicious prosecution against the plaintiff; and that shortly before the plaintiff’s cow was poisoned, a new quarrel had broken, out between the parties. Where a witness on the part of the plaintiff was enquired of on cross-examination, if the plaintiff had not assisted him in a law suit which the witness had had with the defendant, and the witness answered in the negative, held that it was competent for the defendant to contradict the witness in this respect by other testimony, with a view of discrediting the witness.

This was an notion for slander. Plea — tile general issue, and trial by jury, at the March Term, 1861, Peck, J., presiding. The plaintiff on trial introduced evidence tending to show tho speaking of the words set forth in the declaration, and that they were spoken in the sense and meaning attributed to them in the declaration, and tending to prove all the facts necessary to entitle the plaintiff to recover on these counts. The sgbstajice of the slander charged in the declaration, was that the defendant poisoned the plaintiff’s cow, and thereby caused her death. The defendant then offered to show that just before speaking the alleged slander lie had a cow die suddenly by some active mineral poison, and that she was poisoned by some person by design for the purpose of injuring the defendant; and also to show such facts and circumstances tending to implicate the plains tiff as the person who administered the. poison, which facts and circumstances came to the defendant’s knowledge before the speaking of the words charged, as furnished probable cause and good reason for belief ou the part of the defendant, at the time of speaking the words, that the plaintiff was the person who intentionally poisoned the cow; and that the defendant in good faith did then believe that to be the fact; and that at the time of speaking the words, the defendant believed them to be true. This evidence was offered, not as a defence to the action, nor to show that the plaintiff was in fact guilty of what the defendant had charged him with, but as evidence in mitigation of damages. The plaintiff objected to the admission of this evidence, (which, so far as it tended to implicate the plaintiff as the guilty person, was of a circumstantial character). The court overruled the objection and admitted the evidence for the purpose for which it was offered, to which the plaintiff excepted. This testimony consisted mainly in the fact that for some three years next before the defendant lost his cow, there had existed a violent quarrel between the parties, and a bitter feeling of hostility and various,threats -on the part of the plaintiff towards the defendant, which continued down to the time the defendant lost his cow and to the speaking of the alleged slander by the defendant^ One piece of this testimony introduced by the defendant was that about three years before the speaking of the words, the plaintiff, at a Certain justice trial in which the defendant was sued by some one (not this plaintiff) for poisoning a dog, the plaintiff declared to several persons that he would pay the defendant in his own coin; and to explain it, the evidence tended to show that the defendant was a tanner, and carried on that business in the neighborhood where the parties resided, in Worcester; and that the dogs in the neighborhood were doing damage to his hides about the tannery; and that he proclaimed that unless the dogs were kept away, he should poison them ; and that soon after that he did kill several of the neighbors’ dogs by poison, and among them a dog belonging to this plaintiff, and one belonging to the plaintiff in that justice suit; that the plaintiff in this action attended that justice trial, and immediately after the jury returned their verdict in that action, this plaintiff declared to a number of persons present, that the defendant need not feel so well about the result of that suit, that he (this plaintiff) should pay the defendant in his own coin, if he lived long enough. This was objected to by the plaintiff, but admitted by the court. Another piece of this testimony was that some time after this justice court and before the plaintiff lost his cow, the plaintiff and the defendant met in the street, and that the plaintiff told the defendant he must pay him (the plaintiff) for his dog; and after some altercation about the defendant’s having poisoned the plaintiff’s dog, the defendant told the plaintiff he wotdd pay hitó for the dog if he would pay the damage the dog had done him ; the plaintiff claimed that he had not done any damage, and said that if the defendant would not pay him for the dog, he would pay the defendant fer killing him ; that the defendant said the plaintiff might poison his dog any time lie found him troubling him about his premises, and that he would find no fault; and that the plaintiff' replied he would not poison his dog — 'he was not of consequence enough. The evidence also tended to show (which was admitted under objection by the plaintiff’s counsel,) that some infamous or vulgar story had been circulated about the defendant’s wife, and that the defendant, a few days before the cow died, traced the origin of it in part to the plaintiff’s wife ; and that he charged her with it, which was known to the plaintiff just before the cow died ; and the defeudant, who was a witness, testified that when the cow was poisoned, and when he spoke the words charging the plaintiff with having done it, he supposed that this difficulty about this story was one reason that induced the plaintiff to retaliate by poisoning his cow ; and that when he spoke the words complained of, he believed from the threats and declara* tions the plaintiff had made, that had before that time come to his knowledge, and the other circumstances in evidence that had before been communicated to him, and the hostile feeling the plaintiff had towards him, that the plaintiff did wilfully poison his cow. The defendant also, in connection with the other evidence on .this point, introduced evidence (Which was objected to by the plaintiff) tending to. show that during this time, a year or more before the cow died, the plaintiff endeavored to get the defendant prosecuted criminally for letting the filth from his tannery into the stream which run through a back pasture of the plaintiff’s, about 80 rods from the road, and the same distance from the plaintiff’» buildings where he resided, claiming that it created a stench in his pasture which was offensive — when in fact the defendant did not let it into the stream except a little occasionally in the winter, but buried it in the earth, and let the neighbors have it who drew it off' for manure; and that there was no pretence or probable cause for such prosecution, claiming that it was done by the plaintiff merely from malicious motives ; and that this was known to the defendant before his cow died. The evidence on- the part cf the plaintiff tended- to show that the filth from the tannery did float down and lodge o.n the plaintiff’s land near the banks of the stream, and create at times an offensive smell in his pasture1 The court told the jury in relation to this testimony in reference to. the efforts of the plaintiff to get the defendant, prosecuted, that they should reject it entirely unless they found that there was no probable cause for such prosecution, and such a total absence of any. ground for it as to satisfy them that it was attempted by the plaiutiff' solely trom malice towards the defendant, and then it could have no effect only to shoiv the hostile feeling on the part of the plaintiff towards the defendant, and that such hostile feeling was in no way material in the case any further than the jury thought that, if known to the defendant previous to. speaking the words, it might have a tendency, w-itli the other evidence in the case, to induce the defendant to believe, at the time he spoke the words, that the plaintiff did wilfully poison his eo.w. The plaintiff introduced one Kelley as a witness, whose testimony- tended to prove facts material to the plaintiff’s case ; and on cross examination, his testimony tended to prove that he was unfriendly to. the defendant, and had had a law-suit with him, having sued him, and had a justice trial. He was inquired of in reference to his relations and intimate and friendly feelings towards the plaintiff, and whether1 the plaintiff had- not- advised, aided and assisted him in his suit against the defendant, which Kelley denied, saying that that suit was after the speaking of the slanderous words by the defendant. The cross examination of Kelley tended to show that he had been somewhat officious in aiding iu this suit on the part of the plaintiff. The defendant induced one Templeton as a witness* with a view to affect the credit duo to Kelley’s testimony. Templeton’s testimony was in substance that he was present at the trial between Kelley and the plaintiff, and that lie was requested by the plaintiff and.Kelley (who wore also present,) to assist Kelley in the trial, aud did so ; that the plaintiff was busy looking up witnesses for Kelley, and advising and proposing questions for Kelley’s counsel; that after the decision, the plaintiff and Kelley and the witness Templeton were present advising with Kelley’s counsel about an appeal This evidence was objected to by the plaintiff, but admitted by the court for the purpose above stated. The court instructed the jury as to the law applicable to the merits of the case, touching the right of the plaintiff to recover, and generally as to the law applicable to the rule of damages, to the satisfaction of' the plaintiff’s counsel, and to which no exception was taken by the plaintiff’s counsel except as to the effect the court gave to the evidence in mitigation of damages. But on the subject of damages, the plaintiff’s counsel requested the court to instruct the jury that they should lay out of the case ail the evidence (above stated) introduced in mitigation of damages, and that it had no tendency to mitigate the damages. The court refused so to charge, but in reference to that evidence, after referring to it, told the jury that, as the court had already told them on another branch of the case, it must be taken in this case, that the plaintiff was, in fact, innocent of the crime or charge imputed to him by the slanderous words set forth in the declaration ; that the defendant could not rely on the truth of the words spoken by him without pleading it specially, and thereby giving the plaintiff notice that he intended to rely on it, which in this case he had not done ; that in actions of this character the jury had a right to give exemplary damages, that is, damages over and above what the plaintiff had really sustained; that if the defendant was actuated, in speaking the words for which the plaintiff seeks to recover, by actual malice or malignity of feeling, and spoke them for the purpose of injuring the plaintiff’s reputation, it tended to aggravate the damages. And, on the other hand, if, at the time of speaking the words, he honestly supposed what he said was true, it tended to mitigate the damages below what they should be if he maliciously invented the slander without any belief in its truth, or reasonable ground of such belief; and it was in this view only that that evidence was admitted and to be considered; that the question was not so much whether the plaintiff was, in fact, guilty of the charge or crime imputed to him by the defendant, as whether the defendant had reason to believe, and did believe .lie was guilty at the time he spoke the words complained of; that if the jury thought that the defendant had not sufficient ground for such belief, yet, if the defendant misjudged and did believe it, it had a tendency, to some extent, to mitigate the damages ; still this evidence furnished no reason why the plaintiff should not recover all the actual damages he had sustained, but would go in mitigation of exemplary damages; that notwithstanding this evidence, the plaintiff, if he recovered, was entitled to recover a just and reasonable compensation for the injury he had sustained, and such damages as the jury should think, under all the circumstances, was right, and would do substantial justice# between the parties ; what would be a just compensation to the plaintiff, and a just punishment to the defeudnnt. The jury returned a verdict for the plaintiff. The plaintiff excepted to the foregoing rulings of the court, aud to the refusal of the court to charge as requested, and to the portion of the charge above given.