Bell v. Howard

..Opinion op the Court, by Judge Owsley.

'? THÍS was an action brought in the court below Howard against- Bell, for speaking slanderous words, An issue was made up by the parties to a plea justifying the-truth of the words spoken. The jury found a ver-, cHct'in feffpr of Howard, for one thousand dollars; and after ov’^^ling Bell’s motion for a new trial,judgment was rendered by the court in conformity to the verdierc

motion a was on following grounds: 1st, That the verdict is contrary to law and evidence; 2d, that the damages assessed by are^.outrageously excessive; 3d, that the jury were fid&nced by prejudice against Bell; 4th, that one of the jdjtiyfhad formed an opinion ag|fast Bell, previous to the triál, and.which was unknotrajflo him; and 5th, that Bell.wasfjffixpriscd by the evidence of witnesses intro-dfrqb'd hojudo ward, impeaching the character of^ a witness who bad been introduced him.

- The first assignment of error questions- the'correctness of the decision of the court in overruling Bell’s moi, - , . , ° •tjon for a new trial.

^ * There is evidently nothing in the first grouhd assumed hv Bell in his motion. Th&%idence i? of a character J - ... ..arr .... ... . proper for the consideratiqTn&nd decision of the jury, and conduced, to establishirne negative of Bell’s plea, The verdS|ftmob therefore, be said to be against evidence, or uf’violation of any principle of law, Unexpected evidence, im-ch aricter of a witness,isnot a surprise for winch a new be granted. ought not to be assigned, so as to sur-Additional causes for new trial, prise the opposite party.

There 4s , also as little , reason to in-ter-feib .with Ah e verdict'on the second- 'ground as^nsed-uby^Bell.-^ The amount of damages to bé givén ihfiáétidiSb ófVttíis.sqrt, is properly within the sound discretion of:,the jury; and there is nothing iri this cause, going to 'shp.yy*thatln4;béfr determination the discretion of thé" j u ry iias-Ap'eb- abused. The damages are not so outrageously|liighy ás to indicate prejudice or undue influence in thej'ufy against ge]]. .: They are not for more than might be expected from a jury justly appreciating the excellence ofla good character, which, in their opinion, had been unjustifiably and maliciously slandered. ■

, And with respect to the third ground relied on fora new.trial, it is sufficient to remark, that the fact of the jury'entertaining prejudice against Bell, is not mad'e 6ut p^f.

The fourth ground is that of one of the jury having formed an opinion against Bell, before the trial. The juror alluded to, is said, in the affidavit of Bell, .to be Frederick Case; and from that affidavit, as well as the affidavit of the juror, taken by Bell, it is apparent, that when the juror was called on the trial;, he disclosed thé fact of his having made up an opinion before he was sworn. Bell should, therefore, have objected to the juror before he was sworn; and having fail^mto do so, it'was too late, after trial, to make the incompetency of the juror a ground for a new trial. It is true, tliáí Bell, in his affidavit, denies knowing, before the juror was sworn, that the opinion of the juror, though formed, was formed against him. Buthe knew the juror had’ made up a.n opinion; and as he, after possessing that knowledge, waived objecting to the juror, he cannot be permitted to urge the Objection after verdict*

The ground fifthly assumed for a new trialjconsists in the alleged surprise of Beil, by testimony gd&ng to impeach- the character of a witness who had been introduced by himself. Surprise of that sort, we cannot admit to form any sufficient cause for disturbing the verdict of a jury. Bell must be presumed to have known that th& general character of any witness introduced by hini,. was liable to be. assailed^by his adversary. Prudence should, therefore, have dictated to him the propriety of being prepared, on the trial, with evidence to sustain the character of his witness, if it were susjainable; and' having faileá to do so, the fault is with him, and he must be left to abide by the consequences.

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