West v. The Citizens' Insurance Company.

a technical forfeiture, is in no possible view permissible. If the policy admits of such a construction, it is due to the dexterity of the draughtsman, and not to a meeting of the minds of the parties. 32 N. Y. 414.

We conclude, therefore, that the clause under consideration, in connection with the facts disclosed, does not avoid the policy, and that the plaintiffs are entitled to recover thereon.

Finally, the question arises-shall these plaintiffs recover the whole that H. F. West & Co. might have recovered, or only their individual shares? Does the sale by Henry F. West avoid the policy as to his undivided interest?

In Hobbs & Henly v. Memphis Ins. Co., 1 Sneed, 444, a case much like this as to its facts, it was held, as to the share or interest of the retiring partner, the plaintiffs could not recover, but only for their own interest in the firm; while in Hoffman v. Etna Ins. Co., 32 N. Y. 415, 416, where the same question arose, it was decided otherwise. The court there say: "There is no reason why the full measure of indemnity should be withheld from the plaintiffs, who were owners at the date of the insurance, and sole owners at the time of the loss." We concur in the reasoning of the court in that case, and its conclusions of law on this point.

These plaintiffs were parties to the contract; they continued to conduct the business contemplated by the policy; there was no substantial change material to the risk, and none within the meaning of the clause under consideration. The policy was intended to protect the interest of each and all; and its language, fairly construed, is in harmony with that intent.

We are aware that the conclusions we have reached are at variance with the greater number of reported cases, but we believe these conclusions rest on the firmer and more satisfactory ground of sound principles, and that they are more conducive to substantial justice the aim and end of all law.

Judgment reversed, and cause remanded for further proceedings

SCOTT, C. J., DAY, WHITMAN, and WRIGHT, JJ., concurred.

Hayner v. Cowden.

HAYNER V. Cowden.

(27 Oo St. 292.)

Slander — imputing drunkenness to a clergyman. Damages — evidence of pecuniary ability.

Words, charging a clergyman with drunkenness, when spoken of and concerning him in his office or calling, are actionable per se.

In an action where punitive damages may be allowed, evidence of the defend ant's pecuniary ability is admissible.

It is not error to refuse to charge the jury, that if the defendant without reasonable cause believed the charge to be true, they could not award exemplary damages, where there is evidence tending to show that he uttered the words in a wanton and reckless manner.

A

CTION for slander, in charging the plaintiff, a clergyman, with drunkenness. The opinion states the case.

James Murray, J. T. Janvier, and H. G. Sellers, for plaintiff in error. I. A charge of drunkenness is not per se actionable. Hollingsworth v. Shaw, 19 Ohio St. 430; Alfele v. Wright, 17 id. 238; Dial v. Holter, 6 id. 228; Buck v. Hersey, 31 Me. 558; O'Hanlon v. Myers, 10 Rich. L. 128; Addison on Torts, 4.

II. That the defendant is a minister of the gospel does not change the rule. Ministers ou ht not to be regarded in the eye of the law as purer or holier than any other men nor entitled to protection in any greater degree. The law is no longer a respecter of persons; it no longer makes any distinction between classes or conditions of men; its guiding star now is "equality before the law for all."

III. If the words spoken are actionable per se, it can only be in a case where they are spoken in reference to the performance of his ministerial duties. Lumby v. Allday, 1 Cr. & J. 301; 1. Tyrw. 217; Brayne v. Cooper, 5 M. & W. 249; Ayre v. Craven, 2 Ad. & El. 2.

In this case the word "preacher" was evidently used for the sole purpose of identifying the person to whom reference was made.

IV. It must be averred that at the time the words were spoken plaintiff was a paid preacher; or in the receipt of temporal emolu. ments derived therefrom.

Hayner v. Cowden.

If the words were spoken of plaintiff as a minister, then this proposition is undeniably true. Gallwey v. Maxwell, 24 E. L. & E. 46,; Starr v. Gardner, 6 Up. Can. Q. B. (O. S) 512; Hartley v. Herring, 8 Term Rep. 130.

V. The court erred in refusing to charge that if defendant had no reasonable cause to believe the words to be true when he uttered them, yet if the jury found that he did in fact believe them to be true, then the case was not one for exemplary, but for compensatory damages merely.

The distinction between malice in law and malice in fact is well settled. Malice in law is that malice which the law presumes to exist from the mere doing of an unlawful act, while malice in fact is that which exists when there is superadded to the other an evil intention in the party doing the act.

The only cases in which exemplary or punitive damages may be given are those in which actual or express malice is shown. Roberts v. Mason, 10 Ohio St. 277; Pitt v. Donovan, 1 M. & S. 639; Armstrong v. Pierson, 8 Clarke, 29.

VI. The court erred in admitting evidence as to the defendant's wealth, for the purpose of aggravating damages. Ware v. Cartledge, 24 Ala. 622; Palmer v. Haskins, 28 Barb. 90; Townsend on Slander, § 391; 2 Greenl. Ev., § 249.

Conovers & Craighead, and Morris & Son, for defendant in

error.

ness.

WRIGHT, J. The slander alleged in the petition consists in falsely charging plaintiff, a minister of the gospel, with drunkenIt is also averred that the words were spoken of and concerning him in his ministerial profession and pastoral office. The demurrer admits all that is averred, and thus this question is raised: Are words which charge a minister of the gospel with drunkenness, when spoken of him in his profession or calling, actionable per se? We answer that they are. We understand the rule to be, that words spoken of a person, tending to injure him in his office, profession or trade, are thus actionable. 1 Starkie on Slander, 9; Townshend on Libel and Slander, § 182; 2 Addison on Torts, 957 (§ 2, ch. 17, ed. of 1876, of this book has a large collection of authorities on the subject), 1 Am. Lead. Cas. 102; Foulger v. Newcomb, L. R., 2 Exch. 327; Demarest v Haring, 6 Cow. 76.

Hayner v. Cowden.

Calling a clergyman a drunkard was held actionable in McMillan v. Birch, 1 Binn. 176; Chaddock v. Briggs, 13 Mass. 248.

Such words are actionable because they tend to deprive him of the emoluments which pertain to his profession, and may prevent his obtaining employment. It is not, as counsel seems to suppose, that giving a clergyman this right of action is because his office is higher than that of his fellow men. It is a right which belongs to all who have professions or callings, and in this clergymen are not different from others.

This principle is entirely different from that upon which proceeded the cases Hollingsworth v. Shaw, 19 Ohio St. 430; Dial v. Holter, 6 id. 228; Alfele v. Wright, 17 id. 238. In all these the words imputed a criminal offense, and did not relate to profession or calling.

Upon the trial of the case it was insisted by defendant that the words were not spoken of the plaintiff in his character as a minister. The court fairly left this to the jury, and said if they were not so spoken, they would find for the defendant. The jury find this issue for the plaintiff, and in the face of that finding it is impossible for us, sitting as a court of error, to say that they were not spoken of the plaintiff in his character or capacity as a clergyman. If they were, as we have seen, they are actionable.

In the cases cited by defendant, Lumly v. Allday, 1 Tyrw. 217; Brayne v. Cooper, 5 M. & W. 249; Ayre v. Craven, 2 A. & E. 2; Buck v. Hersey, 31 Me. 558; Redway v. Gray, 31 Vt. 292; Van Tapel v. Capron, 1 Denio, 250, it was held that the words spoken did not touch the plaintiffs in their various trades or employments. But to charge a minister with drunkenness does have such an effect. Congregations would not employ clergymen with intemperate habits, and the development of such a vice would be cause for speedy removal from office. When the question is reduced to a mere matter of dollars and cents, the purity, the integrity, the uprightness of a minister's life is his capital in this world's business.

Against the objection made, plaintiff offered evidence of the wealth of the defendant, and in the charge the court said this evidence might be considered in connection with the question of exemplary damages. We see no error in the admission of the evidence, or the charge of the court upon the subject. That punitive or exemplary damages in a proper case may be given is not an open question in Ohio. In Roberts v. Mason, 10 Ohio St. 277; Smith VOL. XXII.-39

Hayner v. Cowden.

v. 1, Ft. W. & C. R. R., 23 id. 10, the court allowed the jury to consider the wealth of defendant in connection with the question of punitive damages. If, then, punishment be an object of a verdict, a small sum would not be felt by a defendant of large wealth. The vengeance of the law would scarcely be appreciated, and he could afford to pay and slander still. There are cases which put the admission of the evidence upon this ground. Alpin v. Morton, 21 Ohio St. 536, intimates that the reason is to enable the jury to determine how much plaintiff has been injured. This case collects the authorities on both sides of the question, to which might be added McBride v. McLaughlin, 5 Watts, 375; Waggoner v. Richmond, Wright, 173; Sexton v. Todd, id. 320; 2 Greenl. Ev. 249; 1 Am. Lead. Cas. 199, note 6; Horsley v. Brooks, 20 Ia. 115; Buckley v. Knapp, 48 Mo. 153. We see no error in the admission of the evidence, or the charge of the court on the subject.

There are some other questions raised by counsel to which we briefly allude.

The defendant asked the court to charge the jury: "If they find that the words spoken by the defendant of and concerning the plaintiff were untrue, and that the defendant has not reasonable cause to believe them to be true; yet, if they are satisfied from the evidence that the defendant did believe them to be true, such state of facts would not warrant a verdict of punitive or exemplary damages, but for compensatory damages only," with which request the court refused to comply, but, on the contrary, charged the jury that such was not the law, to which the defendant then and there excepted.

We do not understand the law of slander to be that it is a defense that the slanderer believed his words to be true, when he had no grounds for so believing. Belief must have a foundation in something. Take away the foundation, and what can be left? The charge asked seems to us a solecism. Belief can only be claimed as a defense, or mitigation, where it is based upon such facts or reasons as would incline a reasonable person so to believe. Inasmuch as this charge was asked in reference to exemplary damages, and there was evidence tending to show that the words had been spoken under circumstances indicating wantonness and recklessness, the charge was properly refused.

It appears to be seriously argued that, in a minister of the gospel, a single act of intoxication is not a fault, and, therefore, a charge