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defendant, as "condition" was said by the appellate court to mean "social standing" in the legitimate and natural construction of the word.

In Harter v. Whitebread (1909) 38 Pa. Super. Ct. 10, holding that, where plaintiff had made no effort to swell the damages by showing that the defendant was wealthy, the defendant was properly denied the privilege of proving his poverty, the court simply gave an opinion that "the injury sustained by a slandered plaintiff does not wax or wane according to the financial standing of the owner of the tongue that circulates the slander."

While the courts whose decisions support the rule that evidence of defendant's financial circumstances is relevant as bearing on punitive damages do not seem to have generally intended the statement that the evidence is admitted for that purpose as exclusive, such a construction of the language used in some of the cases is possible.

c. On behalf of defendant.

1. Generally.

In harmony with the general rule of practice that a defendant is allowed to disprove anything which the plaintiff may be allowed to prove in a cause, it has generally been considered the complement of the rule that the plaintiff can introduce testimony to show the actual or reputed financial circumstances of the defendant, either to aggravate punitive dam. ages or determine the amount of compensatory damages, that the defendant should be allowed to show his actual poverty, or that he is not reputed to be wealthy. But quite naturally the courts have not been called upon frequently to pass upon the admissibility of such evidence on behalf of the defendant, and the question has been considered in only a few cases based on a defamation. But it must be conceded that the position is open to attack on several grounds, and the view that the rule cannot be applied to the defendant has been a contributing factor in the reasoning leading several courts to declare the evidence absolutely inadmissible.

34 A.L.R.-2.

2. In mitigation of exemplary, punitive, · or vindictive damages.

The defendant in an action for libel or slander can show that he is not wealthy to mitigate the amount of added damages which the jury may assess against him as punishment and example. Karney v. Paisley (1862) 13 Iowa, 89 (dictum) (compare Bailey v. Bailey (1895) 94 Iowa, 606, 63 N. W. 341; and see Sclar v. Resnick (Iowa) infra, II. c, 3); Johnson v. Smith (1875) 64 Me. 553; Harter v. Whitebread (1909) 38 Pa. Super. Ct. 10; Rea v. Harrington (1885) 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475; M'Nutt v. Young (1836) 8 Leigh (Va.) 542.

See also Pavlovski V. Thornton (1892) 89 Ga. 829, 15 S. E. 822.

Contra: Ware v. Cartledge (1854) 24 Ala. 622, 60 Am. Dec. 489; Case v. Marks (1866) 20 Conn. 248.

The ratio decidendi of the foregoing cases is that, since the plaintiff has the right to show that the defendant is a man of wealth in order to recover added damages proportionate to his wealth, the defendant should, as a matter of right, be permitted to show that he is not in fact wealthy. It would seem that, if such proof is allowable in order to aggravate the damages in such cases, when the defendant is wealthy, the court declared in Ware v. Cartledge (Ala.) supra, "common justice would require that a converse rule should prevail in the case of poor defendants, and they should be allowed to give their poverty in evidence to mitigate the damages." But the court based the continuance of its argument against the admissibility of the evidence on behalf of the plaintiff upon the unsoundness of the reasoning in the quotation. "Yet nearly all the books declare," the court continued, "that this is not the case, and common sense revolts at the idea of its adoption. For sad would be the fate of that country whose laws conceded to the insolvent . . slanderer the privilege of perpetrating his wrongs with comparative impunity, under the assurance that, when sued for his practices, the damages would be graduated graduated to his

present ability to pay them, and consequently would be merely nominal. No sound principle of law tolerates such a practice." The foregoing statement has been quoted with approval in several of the cases cited in subd. I. of this annotation. See Young v. Kuhn (Tex.) therein.

In Pavlovski v. Thornton (Ga.) supra, it is said in the syllabus by the court that, "the worldly circumstances of the defendant not being shown," the verdict of the jury did not appear excessive.

The supreme court of Connecticut refused, in Case v. Marks (Conn.) supra, to follow a dictum in Bennett v. Hyde (1825) 6 Conn. 24. In Case v. Marks the court held that the defendant cannot "prove his own pecuniary condition to shield himself from the consequences of his own wrong."

The arguments of the two cases stating the minority view, pointed and forceful though they are, do not seem conclusive, and while they present cogent reasons why the evidence might be held inadmissible in favor of either party, it seems clear that a court which views the evidence as competent on behalf of the plaintiff cannot with any sense of justice deny the defendant the right to shield himself from exorbitant punitive damages. Only one idea combats this conclusion, and that is that a defendant in straitened circumstances at the time of trial may, at the time judgment is enforced, be able to respond, but it is not thought that that reason, standing by itself, should control a determination of the question.

3. As a measure of compensatory damages.

It would seem to follow as a complement of the rule that the plaintiff may introduce evidence of the defendant's wealth or reputed wealth to show that he is a man of influence, thereby aiding the jury in estimating compensatory damages, that the defendant should be allowed to show that he is not reputed to be wealthy, in order to diminish the amount of compensatory damages. While the idea of permitting a defendant to show that he is a man of small in

fluence that his words carried little weight, and did not reach the ears of many people because he is poverty stricken-does not commend itself as embodying abstract justice, defendant tort-feasors in many other kinds of actions are permitted to show that the damage done defendant is not so great as that alleged, nor so great as that of the average case. The position contended for finds support in Bennett v. Hyde (1825) 6 Conn. 24 (rejected in Case v. Marks (1850) 20 Conn. 248), and Johnson v. Smith (1875) 64 Me. 553, an action for assault, where the court cites several cases based on defamation as sustaining its conclusion that evidence offered by the defendant to diminish punitive damages was was erroneously excluded, and says that the evidence was likewise competent as bearing on compensatory damages, as the assault had the elements of damage to the character and insult to the personciting Humphries v. Parker (1864) 52 Me. 507, which was a defamatory action, as sustaining its conclusion in this regard. And in Selar v. Resnick (1921) 192 Iowa, 669, 185 N. W. 273, the following language is employed, arguendo: "If a plaintiff is entitled, in a slander suit, to prove the wealth of the defendant in order to draw the inference there from 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." The court, continuing its argument, which resulted in a conclusion that the "reputed wealth in specific amount" is inadmissible on behalf of the plaintiff-thereby limiting, but not overruling, a number of earlier Iowa cases,-said, however: "There is as much reason for the one rule as for the other, and both are

illogical. The establishment of such a 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." And the court expresses the view that the jury would have to consider "a collateral matter wholly foreign to the issue in the case, and, as we view it, not germane to its proper determination."

While it must be conceded that difficulties may be encountered during trial, in allowing a defendant to show his poverty, the difficulties can, it would seem, be managed by a watchful trial court, and the difficulty of handling facts is not generally regarded as affecting directly the materiality of evidence setting forth the facts. 10 R. C. L. 861.

4. Defendant's right as dependent on plaintiff opening the inquiry. Harter v. Whitebread (1909) 38 Pa. Super. Ct. 10, held that, where the plaintiff had made no effort to swell the damages by showing that the defendant was wealthy, the defendant was properly denied the right to prove his poverty. The holding of the case offers a partial solution of one of the difficulties attendant upon the introduction of evidence by the defendant of his poverty, heretofore pointed out in this division. In the Harter Case the defendant offered evidence of his limited means to diminish punitive damages. The reason given by the court for its decision is that when a plaintiff seeking damages for a defamation does not attempt to recover punitive damages by showing that the defendant is well able to respond, the issue as to whether he is able to respond does not arise.

But several other courts which have been called upon to consider the matter have arrived at the opposite conclusion. Johnson v. Smith (1875) 64 Me. 553; Rea v. Harrington (1885) 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475. And see M'Nutt v. Young (1836) 8 Leigh (Va.) 542, where it is said that evidence may be offered by the defendant to show that his property is small, and that he has a wife and children to maintain. "This is not

within the issues," the court said; "yet, if it be not given, all of his substance may be swept from beneath him, and the jury may ruin him, although they only intended to punish him for his fault." The reasoning of the court would seem to lead to the conclusion that where punitory damages are recoverable the defendant should be allowed to show his poverty in mitigation of such damages, even though the plaintiff has offered no evidence of his wealth. Johnson v. Smith (Me.) supra, held it error to deny the defendant the right to show his financial condition, even though the plaintiff had offered no evidence on the subject. The action was for assault and battery, but, as heretofore pointed out in this division, the court regarded the cause as determinable by the same considerations as an action for libel or slander. The court said that, the plaintiff having the right to show defendant's wealth, it was equally competent for the defendant to show a want of wealth to diminish the damages to be assessed against him, and said that the waiving of the right by the plaintiff was no reason why it should have been taken from the defendant. The court concluded: "Nor does the mere nonclaim of damages on that ground, the right to punitive damages being still insisted upon, take it from the consideration of the jury. Hence, the exclusion of the testimony left them in darkness where they were entitled to light. If the plaintiff really intended to admit that the defendant was without means, the testimony could have done him no harm; but such an admission was not distinctly made, and, in the absence of it, the exclusion of the testimony would be injurious to the defendant. It certainly deprived him of a legal right." The reasoning employed in the Johnson Case was approved and followed in Rea v. Harrington (Vt.) supra.

Mullin v. Spangenberg (1884) 112 Ill. 140, while not a case within the scope of the annotation, throws some light on the point here considered. The case was an action for assault and battery, which held that the de

fendant could not introduce evidence of his pecuniary circumstances except in rebuttal of testimony offered by plaintiff as to his wealth, to enhance damages. The court said: "Where a plaintiff entitled to vindictive damages offers no evidence of the defendant's wealth with a view of enhancing them, he, in effect, says, 'I ask no damages against the defendant except as a mere individual, without any regard to his property or estate, whether it be much or little'-and in that kind of a case the jury have no right to give any more damages than they would if it had affirmatively appeared the defendant was without pecuniary resources. But where the testimony is offered by the plaintiff, he does it for the purpose of enhancing the damages. By offering it he, in effect, says, 'I ask in the way of damages something more than I would be entitled to recover from the defendant as a mere individual, without regard to his pecuniary circumstances.' In doing this, the plaintiff tenders a new issue of fact, which opens up the question to both sides."

d. Where more than one defendant. Evidence of the wealth of one of the defendants in a defamatory action, offered as bearing on the allowance of exemplary damages, is inadmissible in a case when the verdict must be for one entire sum against all the defendants found guilty, and may be collected from any one of them, who would have no right of contribution. Washington Gaslight Co. v. Lansden (1899) 172 U. S. 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296. And merely charging the jury that punitive damages cannot be recovered will not, in such an action, cure the erroneous reception of evidence of the wealth of one of the defendants, when this evidence is not specifically withdrawn. Ibid.

While the foregoing case has been relied on as authority for various holdings relating to the admissibility of the wealth of the defendant in a defamatory action, the statements above seem to contain all the law declared in the case, save that it may be relied on as admitting that the practice that such evidence may be

introduced where punitive damages are recoverable against a single defendant; the court was not called upon to decide, nor did it attempt to decide, the question whether the evidence of the wealth of one of joint defendants is admissible as bearing on exemplary damages, where punitory damages are recoverable against such defendant, but not against his codefendants, nor the several other questions that may arise out of facts closely similar to those in that case.

In the several cases in which it has been observed that there was more than one defendant, that fact, standing by itself, has not been regarded as sufficient reason for the exclusion of evidence of the financial condition of one or more of the several joint defendants. See the following cases: Calderin v. Español (1908) 4 Porto Rico Fed. Rep. 376; Taylor v. Pullen (1899) 152 Mo. 434, 53 S. W. 1086; Leavell v. Leavell (1905) 114 Mo. App. 24, 89 S. W. 58; Mauk v. Brundage (1903) 68 Ohio St. 89, 62 L.R.A. 477, 67 N. E. 152; Mix v. North American Co. (1903) 29 Pa. Co. Ct. 137; Gagen v. Dawley (1916) 162 Wis. 152, 155 N. W. 930.

In Leavell v. Leavell (1905) 114 Mo. App. 24, 89 S. W. 58, supra (an action for alienation of affections), it is said, where there are two defendants in a tort action in which punitive damages are recoverable, evidence of the wealth of one of the defendants is inadmissible (even though the defendants are husband and wife, since the husband should not be punished "for the utterance of an unruly tongue which he was powerless to withhold"), relying on the Washington. Gaslight Co. Case (U. S.) supra. But the court took the position that where the question of compensatory damages is affected by the wealth of any one of the defendants, the evidence would be admissible, since as to compensation "every wrongdoer is liable for full compensation, whether he be rich or poor."

The reasoning of the court in the foregoing case seems sound, and is supported by the case of Mauk v. Brundage (1903) 68 Ohio St. 89, 62

L.R.A. 477, 67 N. E. 152, which held that evidence of the financial standing of certain of the defendants in a libel suit is competent as bearing upon the importance attached to their words in the community where uttered.

After deciding that evidence of the wealth of a defendant in an action of slander is not admissible, the court said in Austin v. Bacon (1888) 49 Hun, 386, 3 N. Y. Supp. 587, that since the words complained of were spoken by the wife of the defendant whose wealth was sought to be shown, husband and wife having been joined as defendants, the position in life of the husband as shown by his wealth was unimportant.

Mix v. North American Co. (1903) 29 Pa. Co. Ct. 137, held it was no error to admit evidence of the wealth of one of joint defendants, as the plaintiff could have offered the same evidence as to the others, or discontinued suit as to them, the court giving as a further reason to sustain its conclusion, that the objection to offering the evidence as to one only of the defendant must be seasonably made, and such objection, when made upon motion for a new trial, is out of season.

e. Where a corporation is defendant.

In Randall v. Evening News Asso. (1893) 97 Mich. 136, 56 N. W. 361, it was held under the rule followed in Michigan that only the reputed wealth of a calumniator is admissible, as that is an element of the defendant's power to inflict an injury to character, and that such evidence is not admissible in a case where the defendant is a publishing corporation. The reason upon which the decision is based is that a corporation "has no social rank or social influence to be augmented by its wealth or diminished by its poverty. It is not a member of society. Its libelous utterances will sting and injure according to the extent of its circulation, the character of the paper published, as it is known by its publications, and the character of the party assailed. A newspaper published by a corporation which is reputed to pay

no dividends may have as extensive a circulation as one published by a corporation which is reputed to pay large dividends. . . We .

see no reason or justice in extending this rule [admitting evidence of defendant's reputed wealth] to corporations, and thus giving an opportunity for appeals to the sympathy and prejudice of juries to render verdicts not according to the actual damage sustained, but to the ability of the defendant to pay." The "appeal" to be guarded against was made in the heat of trial in the instant case, and resulted in what appeared to be an excessive verdict. Such fact may have contributed to the conclusion of the court. While the court's language embraces all corporations, the force of its reasoning only comprehends publishing corporations, and may be distinguished on this ground. It may also be observed that the rule adopted is inapplicable to cases where the financial circumstances of a defendant are to be considered as a graduate of punitive damages.

In the following cases evidence touching on the wealth of a corporation which was being sued for a defamation was not regarded as having been rendered inadmissible by reason of the fact that the defendant was an

artificial person: Washington Gaslight Co. v. Lansden (1899) 172 U. S. 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296; Western U. Teleg. Co. v. Cashman (1904) 65 C. C. A. 607, 132 Fed. 805; Buckeye Cotton Oil Co. v. Sloan (1918) 163 C. C. A. 44, 250 Fed. 712; Tingley v. Times Mirror Co. (1907) 151 Cal. 1, 89 Pac. 1097; Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 12 A.L.R. 1007, 184 Pac. 672; Gallagher v. Singer Sewing Mach. Co. (1913) 177 Ill. App. 198; O'Malley v. Illinois Pub. & Printing Co. (1915) 194 Ill. App. 544; Cotton Lumber Co. v. La Crosse Lumber Co. (1918) 200 Mo. App. 7, 204 S. W. 957; Brown v. Globe Printing Co. (1908) 213 Mo. 655, 127 Am. St. Rep. 627, 112 S. W. V. Globe Printing Co. 474; Cook (1910) 227 Mo. 471, 127 S. W. 332; Sotham v. Drovers Teleg. Co. (1911) 239 Mo. 606, 144 S. W. 428.

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