Shilling v. Carson ex rel. Cook

Boavib, C. J., delivered the opinion of this Court. The action in Avhich this appeal is taken is a suit for defamation of character, brought by the appellee against the appellants, for malicious Avords spoken by Harriet, the Avife. The Avords charged are made actionable by the Code of Pub. Geni.

Luavs, Art. 89, secs. 1, 2. ¹⁸⁴ Issue was joined on the general plea that the defendant Harriet did not commit the wrongs as alleged in the declaration, which is equivalent to “non cul.” under the old forms. At the trial, the plaintiff having given evidence to support the issue on her part by examining her mother, the defendants, on cross-examination, proposed to prove by the same witness that she had heard “rumors and reports touching the character of the plaintiff for chastity before the interview in which the defendant used the defamatory words charged, and had spoken to others, and complained to them, and had frequent misunderstandings with them on the same subject," to which the plaintiff objected, and the Court sustained the objection, which forms the ground of the first bill of exceptions on the part of the defendant. The defendants, then, further to support the issue on their part, after proving that the witness was present at the conversation testified to by plaintiff's witnesses, in which the latter charged the daughter of the defendant with using defamatory words, and said to her, “ Harriet Shilling,'I want you to stop your daughter from calling my daughter a-," proposed to call the daughter to prove she at no time, and to no person, used such language ; which being objected to by the plaintiff, and sustained by the Court, constitutes the second exception. The record does not show for what purpose the testimony offered and excluded in the first exception of the defendant was proposed to be given, but it must be inferred from the pleadings that its was offered in mitigation of damages, as it is very well understood, according to the practice in this State, it could not have been admitted for any other purpose.

It is insisted, on the part of the appellants, that the testimony offered should have been admitted to reduce the damages, whether they are regarded as punitive or ¹⁸⁵ compensatory; if the former, as showing the words spoken were not littered maliciously, but as a common rumor ; if the latter, because they showed the general reputation of the plaintiff for chastity was before then impeached. The appellee contends that the testimony offered was properly rejected, as it virtually tended to extenuate the wrong of the defendant, by proof of its repetition, since the rumors might have originated with the defendant. In the case of Wagner vs. Holbrunner, this Court announces the principle which governs the admission of evidence in mitigation of dkmages, in actions of slander, as follows : “ As in all actions of slander the plaintiff is permitted to prove the malicious intent, in order to aggravate the damages, so the defendant, to repel it, may show grounds of suspicion of the truth of the charge, by facts and circumstances ; not in bar of the action, but in mitigation of damages.” 7 Gill, 300 . The defamation complained of in this case appears to have occurred at an interview between the plaintiff’s mother and defendant’s wife, in which the latter used the words complained of, in reply to the threat of the former, to sue the defendant’s daughter.

It does not appear that the defendant Harriet had ever before used any defamatory words of the plaintiff. It would be a violent presumption to suppose she was the author of all the former reports which the witness had heard in the absence of such proof. Where general character is the subject of defamation, the defendant would not be permitted to diminish the damages by evidence of particular instances of misconduct, because the plaintiff is required to be prepared only to maintain his general reputation; but if the subject matter of the suit be the reputation of a woman for chastity she must be expected to be ready to vindicate her character in that particualr in which it is impugned. General ¹⁸⁶ reputation for a want of chastity would certainly be admissible in mitigation of damages.

The admission of evidence in mitigation of damages being either to show the absence of malice, or the want of reputation, whatever circumstance tends to prove the one or the other, is within the reason of the rule. As we have shown, this Court has decided that facts and circumstances may be given in evidence, under the general issue, not amounting to proof of justification, but has not defined what constitutes such facts and circumstances. Professor G-reenleaf, in his 2d vol. on Evidence,