Jones v. Edwards

Chalmers, J.,

delivered the opinion of the court.

The slanderous words averred in the declaration were that the defendant had said, of and concerning the plaintiff, that “he (meaning the plaintiff) had stolen, or might as well have stolen, said bale of cotton,” and further that “ he (meaning the plaintiff) was a d-d rascal.” The court properly excluded evidence under this count, that the defendant had said, that the plaintiff “ was a poor scamp, that he had taken his rent cotton and carried it off and sold it without leave, and that when the grand jury met he would show him (the plaintiff) whose cotton it was.” There was a fatal variance between the language averred and that offered to be proved. In this class of cases, the exact words charged, or synonymous words, must be proved. It is not sufficient that the same general idea is conveyed. Townshend on Slander and Libel, § 364, and cases cited. There was here but little, if any, similarity of ideas, and none whatever of words, nor did the plaintiff offer to amend his declaration so as to conform to the words proved, as he would have had a right to do.

The court properly refused to allow the jury to impeach their verdict by stating that they thought that a verdict of one cent would carry the costs. The fourth instruction given for the defendant is not obnoxious to the criticism that it assumes the existence of the facts stated in it, as argued by counsel. The facts are hypothetically stated. The court erred in giving the defendant’s third charge. By it the jury were told that it was for them to say whether the plaintiff’s character was injured by the words spoken, and that they were to judge of this from the whole testimony in the case. The meaning of this obviously is, that though the jury believed that the words had been spoken and that they were in fact false and *31 slanderous, they need not give any damages if, from the character of the person speaking them, or from that of the person of whom they were spoken, or from any other cause, no actual damage had been sustained, and that actual damage must be established by testimony in order to entitle the plaintiff to a verdict. This is erroneous. The law implies damage from the fact of slander, nor will the slanderer be permitted to say, either that his own reputation is so low, or that of his victim so high, that the evil words have wrought no harm. The jury must, in sucli cases, give damages even though they are but nominal. The amount is to be determined by them, and their award will not ordinarily be disturbed where no error of law has occurred. Subbard v. Rutledge, 52 Miss. 581 ; Baylis v. Lawrence, 11 Ad. & El. 920; Fry v. Bennett, 5 Sandf. 54, 76 .

For the error committed in granting the third charge for the defendant, the judgment is reversed and a new trial awarded. So ordered.