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his property. While there is much more (1874) 63 Me. 209; Johnson v. force in the reasoning given in the Smith (1875) 64 Me. 553. case, the position taken is open to at- Maryland. — Wilms v. White (1866) tack, in that under it the damages may 26 Md. 380, 90 Am. Dec. 113. be graduated on a very inaccurate Michigan.-Brown v. Barnes (1878) scale. But, as the court in Draper v. 39 Mich. 214, 33 Am. Rep. 375; FarBaker remarked, a number of cases rand v. Aldrich (1891) 85 Mich. 593, holding the defendant's financial con- 48 N. W. 628; Ellis v. Whitehead dition a proper subject of inquiry (1893) 95 Mich. 105, 54 N. W. 752; where punitive damages are recovera- . Randall v. Evening News Asso. (1893) ble have not generally required a 97 Mich. 136, 56 N. W. 361; Botsford v. strict proof of the defendant's ability Chase (1896) 108 Mich. 432, 66 N. W. to respond in added damages. See 325; Loranger v. Loranger (1898) 115 Winans v. Chapman (1919) 104 Kan. Mich. 681, 74 N. W. 228; Derham v. 664, 180 Pac. 266, where evidence Derham (1900) 125 Mich. 109, 83 N. "tending to show the defendant's W. 1005; Sanford v. Houghton (1915) wealth, or his reputation for wealth," 184 Mich. 47, 150 N. W. 334; McCloy v. was held not improperly admitted, as Vaughan (1915) 185 Mich. 199, 151 N. exemplary damages were recoverable. W. 667; DARLING V. MANSFIELD (re

ported herewith) ante. 1.

And see 3. Compensatory damages, reputed cir.

also Watson v. Watson (1884) 53 Mich. cumstances.

175, 51 Am. Rep. 111, 18 N. W. 605. The amount of compensatory dam

Minnesota. Burch v. Bernard ages to be awarded the plaintiff in a

(1909) 107 Minn. 210, 120 N. W. 33. defamatory action in no way depends Compare Peck v. Small (1886) 35 on the ability of the defendant to re

Minn. 465, 29 N. W. 69. spond. But where the actual damage

Missouri.–Polston v. See (1873) 54 suffered may have been extended by

Mo. 291. And see Leavell v. Leavell the wealth of the defendant, an in

(1905) 114 Mo. App. 24, 89 S. W. 58 quiry into the amount of his resources

(dictum). would seem to be proper. A number

Montana.—Downs v. Cassidy (1913) of cases take the position that the ac

47 Mont: 471, 133 Pac. 106, Ann. Cas. tual injury done by a calumny does, or

1915B, 1158. may, depend in part on the financial

New Jersey. Flaacke v. Stratford standing of the calumniator, and hold

(1905) 72 N. J. L. 487, 64 Atl. 146, 5 that the jury may consider the circum

Ann. Cas, 854; Weiss v. Weiss (1920) stance. The cases are:

95 N. J. L. 125, 112 Atl. 184; Bahrey v. California. - Barkly v. Copeland

Poniatishin (1920) 95 N. J. L. 128, 112 (1889) 74 Cal. 1, 5 Am. St. Rep. 413,

Atl. 481. 15 Pac. 307 (but compare Greenberg New York. Lewis v. Chapman v. Western Turf Asso. (1903) 140 Cal.

(1855) 19 Barb. 252, reversed on an357, 73 Pac. 1050); Tingley v. Times

other point in (1857) 16 N. Y. 369, Mirror Co. (1907) 151 Cal. 1, 89 Pac.

contra to later New York cases, cited 1097; Marriott v. Williams (1908) 152

subd. I. Cal. 705, 125 Am. St. Rep. 87, 93 Pac.

Ohio.-Steen v. Friend (1900) 11" 875. See also Scott v. Times-Mirror

Ohio C. D. 235, 20 Ohio C. C. 459; Co. (1919) 181 Cal. 345, 12 A.L.R. 1007,

Mauk v.

Brundage (1903) 68 Ohio St. 184 Pac. 672.

89, 62 L.R.A. 477, 67 N. E. 152. Connecticut. Bennett v. Hyde

Pennsylvania. See M'Almont v. (1825) 6. Conn. 24; Case v. Marks M'Clelland (1826) 14 Serg. & R. 359. (1849) 20 Conn. 248 (doubting the Tennessee.-See dictum in Dush v. wisdom of the rule) ; Barber v. Barber Fitzhugh (1879) 2 Lea, 307. And see (1866) 33 Conn. 335.

also Price v. Clapp (1907) 119 Tenn. Iowa.--Sclar v. Resnick (1921) 192 433, 123 Am. St. Rep. 730, 105 S. W. Iowa, 669, 185 N. W. 273.

864. Maine. Humphries v. Parker Vermont.-Rea v. Harrington (1886) (1864) 52 Me. 502; Stanwood v. Whit- 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475;

Kidder v. Bacon (1900) 74 Vt. 263, 52 Case to its bearing on compensatory Atl. 322.

damages, saying that case held the eviVirginia.-Womack v. Circle (1877) dence admissible solely on the weight 29 Gratt. 192; Herman v. Cundiff which might be given a wealthy man's (1886) 82 Va. 239. But see opinion in slander. The court in the Bennett Sun Life Assur. Co. v. Bailey (1903) Case, however, expressed doubt as to 101 Va. 443, 44 S. E. 692.

whether the reasons given to sustain The theory upon which the fore- the admissibility of the evidence were going cases are rested is that the ex- those upon which the rule admitting tent of the circulation of a statement such evidence originated, or whether derogatory to character, and the cre- "in combination with the justice and dence which is given the statement,- propriety of admitting somewhat of a which two facts, of course, govern in penal sanction—" also stating as the a large measure the actual damage general rule that the plaintiff in an acdone by the statement,-depend upon tion of slander may prove the amount the rank and influence of the calumni- of the defendant's property “to aggraator, and since the rank and influence vate damages,

(and that] the of a person usually, undoubtedly, de- defendant may recur to the same evipend in a measure on whether the per- dence for the purpose of mitigating son is regarded as financially substan- them.” tial or poverty stricken. There are, of In holding evidence concerning the course, exceptions. See discussion of pecuniary circumstances of the deEnos v. Enos (N. Y.) supra, I.

fendant at the time a slander was In Bennett v. Hyde (1825) 6 Conn. uttered admissible on behalf of the 24, evidence of the wealth of the de- plaintiff, as showing the influence the fendant seems to have been regarded word of the defendant would have in by Hosmer, Ch. J., as relevant on the the community, Campbell, Ch. J., inquiry as to the proper amount of speaking for the supreme court of both compensatory and punitive dam- Michigan in Brown v. Barnes (1878) ages. The following quotation from 39 Mich. 214, 33 Am. Rep. 375, said: his opinion has been widely quoted, as "We are quite sensible of the danger well stating the reason for which the of opening the door to such inquiries, evidence is admissible as bearing on because the jury may be influenced compensatory damages: “It is not to by the testimony, at times, more than be inferred that the damages are, of they should be, in calculating damcourse, to be proportioned to the de- ages. But if testimony is admissible fendant's property; but merely that at all, that is a risk which can only property forms an item which, in the be guarded against 'by cautions from estimate, is deserving of regard. Great the court,” such cautions later being wealth is generally attended with cor- said to be directed “against allowing respondent influence, and little influ- it weight beyond what it deserves, ence is the usual concomitant of little and especially against allowing it to property. The declarations of a man swell the damages on its own of fortune concerning the character of count.” Recognizing the conflict in another, like a weapon thrown by a the authority as to the admissibility vigorous hand, will not fail to inflict a of the evidence, the court said: "Such deeper wound than the same declara- questions must be determined sometions made by a man of small estate, what by the ordinary experience of and, as a consequence not uncommon, men, and certainly the mischief of of small inftuence. Property, there- slander depends very much on the infore, may be, and often is, attended fluence of its author and his standing with the power of perpetrating great among his neighbors. This must itdamage, and, in the estimate of a jury, self depend on a great many things becomes an interesting inquiry. I am combined, and it cannot be denied not asserting what ought to be, but that pecuniary standing is one of the what is." Case v. Marks (1866) 20 elements which we are very apt to Conn. 248, seems to limit the Bennett consider in determining the position


and weight of others. It is far from intended to overrule those cases, or being the only or controlling element, that it had the same problem to debut it may be an important one, and cide. is frequently, if not generally, of some Since it is a man's reputation of force."

being wealthy rather than his being The same court declared in Randall so in fact which is said in the above v. Evening News Asso. (1893) 97 cases to be one of the elements going Mich. 136, 56 N. W. 361, that evidence to make up his rank and influence in touching on the financial circum- society, the actual state of the finanstances of the defendant is admissible cial affairs of a man who has defamed upon the “sole ground that the de- another is immaterial in an inquiry fendant's reputation in this respect as to the injury done by his words, is an element of social life and in- and the inquiry should be as to his fluence," and is only admissible under reputation for wealth in the area caution to the jury that “they can where the defamation is though to consider such evidence only in its have become current. The point has bearing on the actual damage which been made by a number of courts conthe plaintiff has sustained, and that sidering the question, and is strictly the wealth of the defendant is, of adhered to where established. Stanitself, no element of damage."

wood v. Whitmore (1874) 63 Me. 209; A statement imputing financial in- Johnson v. Smith (1875) 64 Me. 553; stability to a merchant is said in Farrand v. Aldrich (1891) 85 Mich. Lewis v. Chapman (1855) 19 Barb. 593, 48 N. W. 628; Ellis v. White(N. Y.) 252, to operate “far more ex- head (1893) 95 Mich. 105, 54 N. W. tensively and injuriously' when "com- 752; Randall v. Evening News. Asso. ing from a banker of wealth, whose (1893) 97 Mich. 136, 56 N. W. 361; solvency was unquestioned," than if Botsford v. Chase (1896) 108 Mich. it had come from “a less responsible 432, 66 N. W. 325; Loranger v. and less influential source," and it Loranger (1898) 115 Mich. 681, 74 N. was held for that reason that it was W. 228; Sanford v. Houghton (1915) not improper to receive evidence of 184 Mich. 47, 150 N. W. 334; McCloy the pecuniary circumstances of the v. Vaughan (1915) 185 Mich. 199, 151 defendant in that case, as the evi- N. W. 667; DARLING V. MANSFIELD dence bore "upon the extent of the (reported herewith) ante, 1; Leavell injury,” even if admissible for no v. Leavell (1905) 114 Mo. App. 24, 89 other purpose. This case seems to be S. W. 58 (dictum); Downs v. Cassidy one of first impression in New York, (1913) 47 Mont. 471, 133 Pac. 106, and the obvious applicability of the Ann. Cas. 1915B, 1158; Weiss v. Weiss rule under consideration to the facts (1920) 95 N. J. L. 125, 112 Atl. 184; of the particular case would seem to Bahrey v. Poniatishin (1920) 95 N. J. have entitled it to more consideration L. 128, 112 Atl. 481; Rea v. Harringby the courts of New York which de- ton (1886) 58 Vt. 181, 56 Am. Rep. cided the cases cited in subdivision 561, 2 Atl. 475; Kidder V. Bacon I. of this annotation, without ref- (1900) 74 Vt. 263, 52 Atl. 322. erence to the earlier case.

In Stanwood v. Whitmore (Me.) The rule followed by the Virginia supra, the court made the following court in Womack v. Circle (1877) 29 observation: “Wealth of a defendGratt. (Va.) 192, and Harman v. Cun- ant should be proved by general evidiff (1886) 82 Va. 239, supra, finds dence rather than by particular facts. apparent contradiction in Sun Life It is the defendant's position in Assur. Co. v. Bailey (1903) 101 Va. society which gives his slanderous 443, 44 S. E. 692 (the court says the statements character and weight. "standing of the defendant is im- Reputation for wealth, rather than its material on the question as to what possession, generally confers position. actual or compensatory damages the Therefore, the more proper inquiry is plaintiff is entitled to recover); it is as to the reputation of a defendant not thought, however, that the court for wealth." The court says, how


ever, that the trial court should have wealth except in isolated answers re“considerable discretion as to the lating to his actual wealth, such anform of a question in such a case, to swers do not constitute reversible be exercised according to the circum- error. Sanford v. Houghton (1915) stances."

184 Mich. 47, 150 N. W. 334; McCloy In Farrand v. Aldrich (1891) 85 v. Vaughan (1915) 185 Mich. 199, 151 Mich. 593, 48 N. W. 628 (holding it N. W. 667, supra, held it reversible error for plaintiff to introduce prop- error for the trial court not to charge erty assessment books to show the the jury that it must not consider deactual wealth of the defendant, judg- fendant's financial standing where ment not being reversed for the error, evidence had been given tending to however, as the verdict did not appear show only the actual wealth of deto have been prejudiced by the admis- fendant (but had been later stricken sion), the supreme court of Michigan out) unless the jury were made clearput itself in line with the authorities ly to understand at the time the eviholding that only the reputed wealth dence was ruled out that it was inof a defendant can be considered by competent. a jury, for the reason that “though In Sclar v. Resnick (1921) 192 Iowa, he may be a man possessed of con- 669, 185 N. W. 273, it was held reverssiderable wealth, yet, if this be not ible error to admit evidence on begenerally known in the community, half of the plaintiff of "defendant's no greater injury can, on that ac- reputed wealth in specific amount.” count, be said to flow from the publi- The court considered the matter at cation of the libel, or utterance of the length, and seems to have disapproved slander.” It was said that the in- the rule that allows evidence touchquiry should be directed to his finan- ing on the defendant's financial concial standing in the community," since dition to be admitted for any purpose "it is his reputed, not his actual, in slander suits. After a review of standing that bears upon the injury." the authorities, the court turned its The position taken in Farrand v. Al- attention particularly to the admisdrich has been consistently followed sibility of such evidence as it bears by the Michigan court, and the cases compensatory damages. “The have made the following pertinent theory of the admissibility of this applications: In Randall v. Evening evidence," the court said, “is solely News Asso. (1893) 97 Mich. 136, 56 on the ground that, because of the N. W. 361, supra, evidence of the de- reputed we

reputed wealth of the party charged fendant's wealth is said to be admis- with speaking the slanderous words, sible upon the "sole ground that the they have greater weight in the comdefendant's reputation in this respect munity where he lives, and that the is an element of social right and in- injury to the slandered person is enfluence," and is only admissible under hanced because thereof. With this as caution to the jury that they can con- the reason for permitting the introsider such evidence "only in its bear- duction of the evidence, it is obvious ing upon the actual damages which that the proof should be confined to the plaintiff has sustained, and that the reputed wealth, and not to the the wealth of the defendant is, of it- actual wealth, of the defendant in self, no element of damage." Evi

any event." In attacking the rule dence that the defendant was a direc- admitting the evidence under such tor of a bank was held to have been theory, the court said, in part: “The properly admitted in Ellis v. White- rule originated at a time when wealth head (1893) 95 Mich. 105, 54 N. W. was by no means as universally estab752, supra. While only evidence of lished as now. : All thinking reputed wealth is admissible, the tes- men must realize that the proof of the timony of a witness on the subject wealth of a defendant in a slander will be read in its entirety by a court suit is a great temptation to a jury in reviewing the evidence, and if, to unduly award damages because of when so read, it relates to reputed the apparent ability of defendant to



respond thereto. If a plaintiff is en- where only compensatory damages are titled in a slander suit to prove the recoverable. Western U. Teleg. Co. v. wealth of the defendant in order to Cashman (1904) 65 C. C. A. 607, 132 draw the inference therefrom that, Fed. 808; Harter v. Whitebread (1909) by reason of such wealth, his utter- 38 Pa. Super. Ct. 10; Bradley v. Cramer ances have greater weight and cause (1886) 66 Wis. 297, 28 N. W. 372; greater damage to a plaintiff, then it Gagen v. Dawley (1916) 162 Wis. 152, logically and consistently follows that 155 N. W. 930. And see Robinson v. it should likewise be available to the Eau Claire Book & Stationery Co. defendant charged with slander to (1901) 110 Wis. 369, 85 N. W. 983. prove that he is reputed to be a man It was held in Western U. Teleg. of limited means. If there is any good

Co. v. Cashman (Fed.) supra, that, reason why the reputed wealth of a since only compensatory damages defendant should be established on were recoverable in the case, evidence the theory that such wealth gives showing the great corporate wealth weight to his words, then the poverty of the defendant was improperly adof a defendant is likewise available mitted by the trial court. The court to him as a defense. There is as relied on a statement in Sedgwick on much reason for the one rule as for Damages (where the author was the other, and both are illogical. The speaking only of exemplary damages, establishment of such rule would citing as authority therefor several have a tendency to lead the jury away cases supporting the view that such from the issue in the slander suit to evidence is admissible where either the trial of the collateral matter re- sort of damages is recoverable), and specting the wealth or poverty of the Washington Gaslight Co. v. Lansden defendant.” Continuing later in the (U. S.) supra, II. b, 2, which only held same vein, the court said: “The in- that evidence of the wealth of one of stant case furnishes a good example the joint defendants is inadmissible of the very thing that we think should as bearing on exemplary damages. See be avoided. Plaintiff offered proof consideration of the Washington Gasthat defendant's wealth was variously light Co. Case, infra, II. d. estimated to be $30,000, $40,000, or Receiving evidence of the financial $50,000. Is the utterance of a man condition of the defendant offered worth $50,000 to be regarded as twice upon the question of punitory damas damaging as that of a man worth ages is not reversible error if the only $25,000? And if the slanderer court charged the jury that no such is insolvent, does it follow that no damages could be assessed, and the damages flow from his utterances ? jury was also told by the plaintiff's We are prepared to entirely abrogate counsel that it must disregard the the rule permitting such evidence." evidence given as to his condition.

But all the cases in this subdivision Gagen v. Dawley (1916) 162 Wis. 152, do not confine the inquiry to the re- 155 N. W. 930. Where the amount puted standing of the defendant. Tax of compensatory damages assessed assessment books were held to have shows that the defendant was not been properly received in Womack v. prejudiced by such evidence in view Circle (1877) 29 Gratt. (Va.) 192, of the character of the libelous puband several of the other cases cited lication, the reception of the evidence in this subdivision seem to disclose under the circumstances stated above that questions were allowed to be is not tenable as a ground for reasked as to the actual possessions of versal. Ibid. the defendant.

Buckstaff v. Hicks (1896) 94 Wis. In addition to the authorities cited 34, 59 Am. St. Rep. 853, 68 N. W. 403, supra, I., holding evidence of defend- held an instruction in a suit where ant's financial condition irrelevant, only compensatory damages were rethe position has been taken by several coverable, that the jury might concourts that the financial circum- sider the "condition" of the parties, stances of defendant are not material did not prejudice the interest of the

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