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his property. While there is much force in the reasoning given in the case, the position taken is open to attack, in that under it the damages may be graduated on a very inaccurate scale. But, as the court in Draper v. Baker remarked, a number of cases holding the defendant's financial condition a proper subject of inquiry where punitive damages are recovera-. ble have not generally required a strict proof of the defendant's ability to respond in added damages. See Winans v. Chapman (1919) 104 Kan. 664, 180 Pac. 266, where evidence "tending to show the defendant's wealth, or his reputation for wealth," was held not improperly admitted, as exemplary damages were recoverable. 3. Compensatory damages, reputed circumstances.

The amount of compensatory damages to be awarded the plaintiff in a defamatory action in no way depends on the ability of the defendant to respond. But where the actual damage suffered may have been extended by the wealth of the defendant, an inquiry into the amount of his resources would seem to be proper. A number of cases take the position that the actual injury done by a calumny does, or may, depend in part on the financial standing of the calumniator, and hold that the jury may consider the circumstance. The cases are:

California. - Barkly v. Copeland (1889) 74 Cal. 1, 5 Am. St. Rep. 413, 15 Pac. 307 (but compare Greenberg v. Western Turf Asso. (1903) 140 Cal. 357, 73 Pac. 1050); Tingley v. Times Mirror Co. (1907) 151 Cal. 1, 89 Pac. 1097; Marriott v. Williams (1908) 152 Cal. 705, 125 Am. St. Rep. 87, 93 Pac. 875. See also Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 12 A.L.R. 1007, 184 Pac. 672.

Connecticut. Bennett v. Hyde (1825) 6 Conn. 24; Case v. Marks (1849) 20 Conn. 248 (doubting the wisdom of the rule); Barber v. Barber (1866) 33 Conn. 335.

Iowa. Selar v. Resnick (1921) 192 Iowa, 669, 185 N. W. 273.

Maine. - Humphries v. Parker (1864) 52 Me. 502; Stanwood v. Whit

more (1874) 63 Me. 209; Johnson v. Smith (1875) 64 Me. 553.

Maryland. - Wilms v. White (1866) 26 Md. 380, 90 Am. Dec. 113.

Michigan. Brown v. Barnes (1878) 39 Mich. 214, 33 Am. Rep. 375; Farrand v. Aldrich (1891) 85 Mich. 593, 48 N. W. 628; Ellis v. Whitehead (1893) 95 Mich. 105, 54 N. W. 752; Randall v. Evening News Asso. (1893) 97 Mich. 136, 56 N. W. 361; Botsford v. Chase (1896) 108 Mich. 432, 66 N. W. 325; Loranger v. Loranger (1898) 115 Mich. 681, 74 N. W. 228; Derham v. Derham (1900) 125 Mich. 109, 83 N. W. 1005; Sanford v. Houghton (1915) 184 Mich. 47, 150 N. W. 334; McCloy v. Vaughan (1915) 185 Mich. 199, 151 N. W. 667; DARLING V. MANSFIELD (reported herewith) ante. 1. And see also Watson v. Watson (1884) 53 Mich. 175, 51 Am. Rep. 111, 18 N. W. 605. Minnesota. Burch v. Bernard (1909) 107 Minn. 210, 120 N. W. 33. Compare Peck v. Small (1886) 35 Minn. 465, 29 N. W. 69.

Missouri.-Polston v. See (1873) 54 Mo. 291. And see Leavell v. Leavell (1905) 114 Mo. App. 24, 89 S. W. 58 (dictum).

Montana.-Downs v. Cassidy (1913) 47 Mont: 471, 133 Pac. 106, Ann. Cas. 1915B, 1158.

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Kidder v. Bacon (1900) 74 Vt. 263, 52 Atl. 322.

Virginia.-Womack v. Circle (1877) 29 Gratt. 192; Herman V. Cundiff (1886) 82 Va. 239. But see opinion in Sun Life Assur. Co. v. Bailey (1903) 101 Va. 443, 44 S. E. 692.

The theory upon which the foregoing cases are rested is that the extent of the circulation of a statement derogatory to character, and the credence which is given the statement,which two facts, of course, govern in a large measure the actual damage done by the statement,-depend upon the rank and influence of the calumniator, and since the rank and influence of a person usually, undoubtedly, depend in a measure on whether the person is regarded as financially substantial or poverty stricken. There are, of course, exceptions. See discussion of Enos v. Enos (N. Y.) supra, I.

In Bennett v. Hyde (1825) 6 Conn. 24, evidence of the wealth of the defendant seems to have been regarded by Hosmer, Ch. J., as relevant on the inquiry as to the proper amount of both compensatory and punitive damages. The following quotation from his opinion has been widely quoted, as well stating the reason for which the evidence is admissible as bearing on compensatory damages: "It is not to be inferred that the damages are, of course, to be proportioned to the defendant's property; but merely that property forms an item which, in the estimate, is deserving of regard. Great wealth is generally attended with correspondent influence, and little influence is the usual concomitant of little property. The declarations of a man of fortune concerning the character of another, like a weapon thrown by a vigorous hand, will not fail to inflict a deeper wound than the same declarations made by a man of small estate, and, as a consequence not uncommon, of small influence. Property, therefore, may be, and often is, attended with the power of perpetrating great damage, and, in the estimate of a jury, becomes an interesting inquiry. I am not asserting what ought to be, but what is." Case v. Marks (1866) 20 Conn. 248, seems to limit the Bennett

Case to its bearing on compensatory damages, saying that case held the evidence admissible solely on the weight which might be given a wealthy man's slander. The court in the Bennett Case, however, expressed doubt as to whether the reasons given to sustain the admissibility of the evidence were those upon which the rule admitting such evidence originated, or whether "in combination with the justice and propriety of admitting somewhat of a penal sanction-" also stating as the general rule that the plaintiff in an action of slander may prove the amount of the defendant's property "to aggravate damages, [and that] the

defendant may recur to the same evidence for the purpose of mitigating them."

In holding evidence concerning the pecuniary circumstances of the defendant at the time a slander was uttered admissible on behalf of the plaintiff, as showing the influence the word of the defendant would have in the community, Campbell, Ch. J., speaking for the supreme court of Michigan in Brown v. Barnes (1878) 39 Mich. 214, 33 Am. Rep. 375, said: "We are quite sensible of the danger of opening the door to such inquiries, because the jury may be influenced by the testimony, at times, more than they should be, in calculating damages. But if testimony is admissible at all, that is a risk which can only be guarded against by cautions from the court," such cautions later being said to be directed "against allowing it weight beyond what it deserves, and especially against allowing it to swell the damages on its own account." Recognizing the conflict in the authority as to the admissibility of the evidence, the court said: "Such questions must be determined somewhat by the ordinary experience of men, and certainly the mischief of slander depends very much on the influence of its author and his standing among his neighbors. This must itself depend on a great many things combined, and it cannot be denied that pecuniary standing is one of the elements which we are very apt to consider in determining the position

and weight of others. It is far from being the only or controlling element, but it may be an important one, and is frequently, if not generally, of some force."

The same court declared in Randall v. Evening News Asso. (1893) 97 Mich. 136, 56 N. W. 361, that evidence touching on the financial circumstances of the defendant is admissible upon the "sole ground that the defendant's reputation in this respect is an element of social life and influence," and is only admissible under caution to the jury that "they can consider such evidence only in its bearing on the actual damage which the plaintiff has sustained, and that the wealth of the defendant is, of itself, no element of damage."

A statement imputing financial instability to a merchant is said in Lewis v. Chapman (1855) 19 Barb. (N. Y.) 252, to operate "far more extensively and injuriously" when "coming from a banker of wealth, whose solvency was unquestioned," than if it had come from "a less responsible and less influential source," and it was held for that reason that it was not improper to receive evidence of the pecuniary circumstances of the defendant in that case, as the evidence bore "upon the extent of the injury," even if admissible for no other purpose. This case seems to be one of first impression in New York, and the obvious applicability of the rule under consideration to the facts of the particular case would seem to have entitled it to more consideration by the courts of New York which decided the cases cited in subdivision I. of this annotation, without reference to the earlier case.

The rule followed by the Virginia court in Womack v. Circle (1877) 29 Gratt. (Va.) 192, and Harman v. Cundiff (1886) 82 Va. 239, supra, finds apparent contradiction in Sun Life Assur. Co. v. Bailey (1903) 101 Va. 443, 44 S. E. 692 (the court says the "standing" of the defendant is immaterial on the question as to what actual or compensatory damages the plaintiff is entitled to recover); it is not thought, however, that the court

intended to overrule those cases, or that it had the same problem to decide.

Since it is a man's reputation of being wealthy rather than his being so in fact which is said in the above cases to be one of the elements going to make up his rank and influence in society, the actual state of the financial affairs of a man who has defamed another is immaterial in an inquiry as to the injury done by his words, and the inquiry should be as to his reputation for wealth in the area where the defamation is thought to have become current. The point has been made by a number of courts considering the question, and is strictly adhered to where established. Stanwood v. Whitmore (1874) 63 Me. 209; Johnson v. Smith (1875) 64 Me. 553; Farrand v. Aldrich (1891) 85 Mich. 593, 48 N. W. 628; Ellis v. Whitehead (1893) 95 Mich. 105, 54 N. W. 752; Randall v. Evening News. Asso. (1893) 97 Mich. 136, 56 N. W. 361; Botsford v. Chase (1896) 108 Mich. 432, 66 N. W. 325; Loranger Loranger (1898) 115 Mich. 681, 74 N. W. 228; Sanford v. Houghton (1915) 184 Mich. 47, 150 N. W. 334; McCloy v. Vaughan (1915) 185 Mich. 199, 151 N. W. 667; DARLING v. MANSFIELD (reported herewith) ante, 1; Leavell v. Leavell (1905) 114 Mo. App. 24, 89 S. W. 58 (dictum); Downs v. Cassidy (1913) 47 Mont. 471, 133 Pac. 106, Ann. Cas. 1915B, 1158; Weiss v. Weiss (1920) 95 N. J. L. 125, 112 Atl. 184; Bahrey v. Poniatishin (1920) 95 N. J. L. 128, 112 Atl. 481; Rea v. Harrington (1886) 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475; Kidder v. Bacon (1900) 74 Vt. 263, 52 Atl. 322.

V.

In Stanwood v. Whitmore (Me.) supra, the court made the following observation: "Wealth of a defendant should be proved by general evidence rather than by particular facts. It is the defendant's position in society which gives his slanderous statements character and weight. Reputation for wealth, rather than its possession, generally confers position. Therefore, the more proper inquiry is as to the reputation of a defendant for wealth." The court says, how

ever, that the trial court should have "considerable discretion as to the form of a question in such a case, to be exercised according to the circumstances."

In Farrand v. Aldrich (1891) 85 Mich. 593, 48 N. W. 628 (holding it error for plaintiff to introduce property assessment books to show the actual wealth of the defendant, judgment not being reversed for the error, however, as the verdict did not appear to have been prejudiced by the admission), the supreme court of Michigan put itself in line with the authorities holding that only the reputed wealth of a defendant can be considered by a jury, for the reason that "though he may be a man possessed of considerable wealth, yet, if this be not generally known in the community, no greater injury can, on that account, be said to flow from the publication of the libel, or utterance of the slander." It was said that the inquiry should be directed to his financial standing in the community," since "it is his reputed, not his actual, standing that bears upon the injury." The position taken in Farrand v. Aldrich has been consistently followed by the Michigan court, and the cases have made the following pertinent applications: In Randall v. Evening News Asso. (1893) 97 Mich. 136, 56 N. W. 361, supra, evidence of the defendant's wealth is said to be admissible upon the "sole ground that the defendant's reputation in this respect is an element of social right and influence," and is only admissible under caution to the jury that they can consider such evidence "only in its bearing upon the actual damages which the plaintiff has sustained, and that the wealth of the defendant is, of itself, no element of damage." Evidence that the defendant was a director of a bank was held to have been properly admitted in Ellis v. Whitehead (1893) 95 Mich. 105, 54 N. W. 752, supra. While only evidence of reputed wealth is admissible, the testimony of a witness on the subject will be read in its entirety by a court in reviewing the evidence, and if, when so read, it relates to reputed

wealth except in isolated answers relating to his actual wealth, such answers do not constitute reversible error. Sanford v. Houghton (1915) 184 Mich. 47, 150 N. W. 334; McCloy v. Vaughan (1915) 185 Mich. 199, 151 N. W. 667, supra, held it reversible error for the trial court not to charge the jury that it must not consider defendant's financial standing where evidence had been given tending to show only the actual wealth of defendant (but had been later stricken out) unless the jury were made clearly to understand at the time the evidence was ruled out that it was incompetent.

In Sclar v. Resnick (1921) 192 Iowa, 669, 185 N. W. 273, it was held reversible error to admit evidence on behalf of the plaintiff of "defendant's reputed wealth in specific amount." The court considered the matter at length, and seems to have disapproved the rule that allows evidence touching on the defendant's financial condition to be admitted for any purpose in slander suits. After a review of the authorities, the court turned its attention particularly to the admissibility of such evidence as it bears on compensatory damages. "The theory of the admissibility of this evidence," the court said, "is solely on the ground that, because of the reputed wealth of the party charged with speaking the slanderous words, they have greater weight in the community where he lives, and that the injury to the slandered person is enhanced because thereof. With this as the reason for permitting the introduction of the evidence, it is obvious that the proof should be confined to the reputed wealth, and not to the actual wealth, of the defendant in any event." In attacking the rule admitting the evidence under such theory, the court said, in part: "The rule originated at a time when wealth was by no means as universally established as now. All thinking

men must realize that the proof of the wealth of a defendant in a slander suit is a great temptation to a jury to unduly award damages because of the apparent ability of defendant to

respond thereto. If a plaintiff is entitled in a slander suit to prove the wealth of the defendant in order to draw the inference therefrom that, by reason of such wealth, his utterances have greater weight and cause greater damage to a plaintiff, then it logically and consistently follows that it should likewise be available to the defendant charged with slander to prove that he is reputed to be a man of limited means. If there is any good reason why the reputed wealth of a defendant should be established on the theory that such wealth gives weight to his words, then the poverty of a defendant is likewise available to him as a defense. There is as much reason for the one rule as for the other, and both are illogical. The establishment of such rule would have a tendency to lead the jury away from the issue in the slander suit to the trial of the collateral matter respecting the wealth or poverty of the defendant." Continuing later in the same vein, the court said: "The instant case furnishes a good example of the very thing that we think should be avoided. Plaintiff offered proof that defendant's wealth was variously estimated to be $30,000, $40,000, or $50,000. Is the utterance of a man worth $50,000 to be regarded as twice as damaging as that of a man worth only $25,000? And if the slanderer is insolvent, does it follow that no damages flow from his utterances? We are prepared to entirely abrogate the rule permitting such evidence."

But all the cases in this subdivision do not confine the inquiry to the reputed standing of the defendant. Tax assessment books were held to have been properly received in Womack v. Circle (1877) 29 Gratt. (Va.) 192, and several of the other cases cited in this subdivision seem to disclose that questions were allowed to be asked as to the actual possessions of the defendant.

In addition to the authorities cited supra, I., holding evidence of defendant's financial condition irrelevant, the position has been taken by several courts that the financial circumstances of defendant are not material

where only compensatory damages are recoverable. Western U. Teleg. Co. v. Cashman (1904) 65 C. C. A. 607, 132 Fed. 808; Harter v. Whitebread (1909) 38 Pa. Super. Ct. 10; Bradley v. Cramer (1886) 66 Wis. 297, 28 N. W. 372; Gagen v. Dawley (1916) 162 Wis. 152, 155 N. W. 930. And see Robinson v. Eau Claire Book & Stationery Co. (1901) 110 Wis. 369, 85 N. W. 983.

It was held in Western U. Teleg. Co. v. Cashman (Fed.) supra, that, since only compensatory damages were recoverable in the case, evidence showing the great corporate wealth of the defendant was improperly admitted by the trial court. The court relied on a statement in Sedgwick on Damages (where the author was speaking only of exemplary damages, citing as authority therefor several cases supporting the view that such evidence is admissible where either sort of damages is recoverable), and Washington Gaslight Co. v. Lansden (U. S.) supra, II. b, 2, which only held that evidence of the wealth of one of the joint defendants is inadmissible as bearing on exemplary damages. See consideration of the Washington Gaslight Co. Case, infra, II. d.

Receiving evidence of the financial condition of the defendant offered upon the question of punitory damages is not reversible error if the court charged the jury that no such damages could be assessed, and the jury was also told by the plaintif's counsel that it must disregard the evidence given as to his condition. Gagen v. Dawley (1916) 162 Wis. 152, 155 N. W. 930. Where the amount of compensatory damages assessed shows that the defendant was not prejudiced by such evidence in view of the character of the libelous publication, the reception of the evidence under the circumstances stated above is not tenable as a ground for reversal. Ibid.

Buckstaff v. Hicks (1896) 94 Wis. 34, 59 Am. St. Rep. 853, 68 N. W. 403, held an instruction in a suit where only compensatory damages were recoverable, that the jury might consider the "condition" of the parties, did not prejudice the interest of the

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