§ 448.

MITIGATION.

33

drunk when he uttered the words, this may go in mitigation of damages as tending to rebut malice. (*) But where it is proved that he repeated the charge both when drunk and sober, on public and private occasions, his being drunk at the particular time alleged is no reason for abating the damages. The insanity of the defendant may be shown. () It has apparently been allowed as a complete defense,(©) but that is not to be approved in a civil suit.

Matters which induced a belief of the truth of the charge in the defendant may be shown to disprove malice. Thus where the defendant's newspaper published a libel on the plaintiff, the receipt by the defendant of forged letters containing statements upon which the charge was founded may be shown in mitigation. (4) Where the defendant accused the plaintiff of unchastity, evidence is admissible of an increase in the plaintiff's size resembling pregnancy, which in fact was from another cause.(*)

In actions of slander and libel, it has been much discussed how far the fact of the slander or libel complained of being a mere repetition or republication can be set up, either in justification or mitigation.' It can be set up in New Hampshire in mitigation. (') It was said in Hinkle v. Davenport (5) that a defendant could show in mitigation that he had stated the slander as a report he had heard.

1 Howell v. Howell, 10 Ired. 84.

(*) Gates v. Meredith, 7 Ind. 440.

? Bennett v. Bennett, 6 C. & P. 588, and cases cited.

() Yeates v. Reed, 4 Blackf. 463; Brown v. Brooks, 3 Ind. 518.

(c) Bryant v. Jackson, 6 Humph. 199.

(4) Storey v. Early, 86 Ill. 461.

(*) Doe v. Roe, 32 Hun 628.

() Wier v. Allen, 51 N. H. 177.
(*) 38 Ia. 355.

VOL. II.-3

§ 449. Provocation.-In an action of slander or libel, it is competent for the defendant to show, in mitigation of damages, the manner of language held towards him by the plaintiff, or other provocation, immediately prior to the time of the libel for which he is sued. (*) So the fact that the libel was provoked by a recent libel of the plaintiff on the defendant may be shown in mitigation.() It was held in North Carolina that mental distress of the defendant at the time he uttered the slander, caused by his belief in the truth of it, was admissible in mitigation.() But the defendant cannot prove in mitigation of damages, irritating language addressed to him by the father of the plaintiff immediately previous to the uttering of the slanderous words to another person.1

$450. Disproof of damage.-Another class of facts are received in mitigation, because they show that the damage caused to the plaintiff by the defamation was less than would otherwise be the case. Since the principal element of damage is injury to the plaintiff's character, it is pertinent to show that this character was not at all or very little injured in the minds of the hearers. This may be done in one of two ways: by showing that the words were not believed, or by showing that the plaintiff's character was so bad as not to be injured. The former method is not encouraged by the courts, because in adopting it the defendant is obliged to defame him

Underhill v. Taylor, 2 Barb. 348.

(*) Freeman v. Tinsley, 50 Ill. 497; Brown v. Brooks, 3 Ind. 518; Mousler v. Harding, 33 Ind. 176; Botelar v. Bell, 1 Md. 173; Newman v. Stein, 75 Mich. 402; Warner v. Lockerby, 31 Minn. 421; Powers v. Presgroves, 38 Miss. 227; Massuere v. Dickens, 70 Wis. 83.

() Watis v. Fraser, 7 C. & P. 369; Pugh v. McCarty, 40 Ga. 444 ; Maynard v. Beardsley, 7 Wend. 560.

() McDougald v. Coward, 95 N. C. 368.

§ 451.

BAD CHARACTER OF THE PLAINTIFF.

35

self. Thus in Massachusetts it was held that the defendant could not show that he was in the habit of talking too much about persons and things, so that what he said was not regarded in the community as worthy of notice.(*) Yet the evidence would bear directly on the degree of the plaintiff's injury. The defendant may prove, in mitigation of damages, a declaration of the plaintiff that he was not injured by the words complained of. But evidence that the witnesses who heard the words uttered did not believe them, is not admissible. (b) The latter method, on the other hand, is a commonly attempted and much controverted method of mitigating damages, and the authorities are in great confusion.

$451. Bad character of the plaintiff.-The general bad character of the plaintiff at the time of the alleged slander is admissible in mitigation of damages, not merely with a view to disprove malice, but upon the broader ground that a person of already disparaged reputation is not entitled to the same measure of damages as one with an unblemished fame. The evidence is admitted to show the value of what is alleged to be injured, and is, therefore, not to be restricted to the particular traits of character involved in the slanderous words. () So a charge

(*) Howe v. Perry, 15 Pick. 506; Hastings v. Stetson, 130 Mass, 76. () Richardson v. Barker, 7 Ind. 567.

(Whitney v. Janesville Gazette, 5 Biss. 330; Wright v. Schroeder, 2 Curt. 548; Waters v. Jones, 3 Port. 442; Pope v. Welsh, 18 Ala. 631; Fuller v. Dean, 31 Ala. 654; Brunson v. Lynde, 1 Root 354; Seymour v. Merrills, I Root 459; Sheahan v. Collins, 20 Ill. 325; Adams v. Smith, 58 Ill. 417 ; Burke v. Miller, 6 Blackf. 155; Armstrong v. Pierson, 8 la. 29; Eastland v. Caldwell, 2 Bibb. 21; Shilling v. Carson, 27 Md. 175; Bodwell v. Swan, 3 Pick. 376; Stone v. Varney, 7 Met. 86; Leonard v. Allen, II Cush. 241 ; Clark v. Brown, 116 Mass. 504; Peterson v. Morgan, 116 Mass. 350; Mahoney v. Belford, 132 Mass. 393; Anthony v. Stephens, 1 Mo. 254; Lamos v. Snell, 6N. H. 413; Sayre v. Sayre, 25 N. J. L. 235; Paddock v. Salisbury, 2 Cow. Hamer v. McFarlin, 4 Denio 509; Vick v. Whitfield, 2 Hayw. 222; De

811;

to the jury that if the plaintiff by her own dissolute conduct had so destroyed her character as to receive no injury from the words they should give nominal damages is good.(*) But bad character of the plaintiff after he is defamed by the defendant will of course not be admissible in mitigation. ()

So also the bad character of the plaintiff in the particular trait involved in the defamation may be shown. () There is a conflict of opinion upon the question whether a general rumor of the truth of the fact charged by the defendant is admissible in mitigation of damages. The weight of authority favors the admission of the evidence, (d) but some of our courts exclude it.(*) The objection to its admission is that if the truth is not pleaded in justification the plaintiff is not prepared to wit v. Greenfield, 5 Oh. 225; Henry v. Norwood, 4 Watts 347; Steinman v. McWilliams, 6 Pa. St. 170; Sawyer v. Eifert, 2 N. & McC. 511; B. v. I., 22 Wis. 372; Maxwell v. Kennedy, 50 Wis. 645; Campbell v. Campbell, 54 Wis. 90. Contra, that the plaintiff's bad character can be shown only as regards the trait involved, Lamberrt v. Pharis, 3 Head 622; Dillard v. Collins, 25 Gratt. 343; Williston v. Smith, 3 Kerr 443.

(*) Flint v. Clark, 13 Conn. 361.

(1) Scott v. McKinnish, 15 Ala. 662; Douglass v. Tousey, 2 Wend. 352. (c) Anonymous v. Moor, 1 M. & S. 284; Turner v. Foxall, 2 D. C. (2 Cr. C. C.) 324; McCabe v. Platter, 6 Blackf. 405; Fletcher v. Burroughs, 10 Ia. 557; Hanners v. McClelland, 74 Ia. 318; Larned v. Buffinton, 3 Mass. 546; Warner v. Lockerby, 31 Minn. 421; Sowers v. Sowers, 87 N. C. 303; Duval v. Davey, 32 Oh. St. 604; Moyer v. Moyer, 49 Pa. 210 (overruling Steinman v. McWilliams, 6 Pa. St. 170, on this point); Drown v. Allen, 91 Pa. 393; Bowen v. Hall, 20 Vt. 232; Bridgman v. Hopkins, 34 Vt. 532; M'Nutt v. Young, 8 Leigh 542; B. v. I., 22 Wis. 372; Campbell v. Campbell, 54 Wis. 90. Contra, Root v. King, 7 Cow. 613.

(d) Broughton v. McGrew, 39 Fed. Rep. 672; Fuller v. Dean, 31 Ala. 654 ; Case v. Marks, 20 Conn. 248 (semble); Morris v. Barker, 4 Harr. 520; Brown v. Brooks, 3 Ind. 518; Barr v. Hack, 46 la. 308; McCurry v. McCurry, 82 N. C. 296.

(*) Strader v. Snyder, 67 Ill. 404; Peterson v. Morgan, 116 Mass. 350; Mahoney v. Belford, 132 Mass. 393; Anthony v. Stephens, I Mo. 254; Dame v. Kenney, 25 N. H. 318 (but contra, Wetherbee v. Marsh, 20 N. H. 56.,; Inman v. Foster, 8 Wend. 602.

§ 451.

BAD CHARACTER OF PLAINTIFF.

37

disprove the fact. Yet, on the other hand, if a general rumor already prevailed of the same tenor as the defendant's words, the latter would clearly not damage the plaintiff to so great a degree as if no such rumor prevailed. So far as any principle of the law of damages is concerned, therefore, the evidence should be received. If rejected, it should be upon the ground that the line of defense is not open under the pleadings. But no evidence can be received of particular acts not charged in the defendant's words, nor of rumors of them, even though the charge was of a general bad character which the particular acts would tend to prove.(*) It has been held in New York that evidence of the plaintiff's character as a common libeller may be shown in mitigation.(*)

In a case in the United States Circuit Court, it was said that the high and established character of the plaintiff could be shown in mitigation, since there was less chance of such a character being injured.() This doctrine, if established, would lead to the curious result that only a person of no character at all, either good or bad, could resist the introduction of evidence by the defendant as to his character. Yet, on the whole, the doctrine seems to be sound; and if so, either party can introduce evidence of the good or bad character of both parties,

(*) Bradley v. Gibson, 9 Ala. 406; Seymour v. Merrills, 1 Root 459; Burke v. Miller, 6 Blackf. 155; Hallowell v. Guntle, 82 Ind. 554; Hanners v. McClelland, 74 Ia. 318; McLaughlin v. Cowley, 131 Mass. 70; Lamos v. Snell, 6 N. H. 413; Vick v. Whitfield, 2 Hayw. 222; Dewit v. Greenfield, 5 Oh. 225; Duval v. Davey, 32 Oh. St. 604; Sawyer v. Eifert, 2 N. & McC. 511; Bowen v. Hall, 20 Vt. 232. But in Ohio, in an action for words impugning the chastity of a female, it was held that the defendant may prove, under the general issue and in mitigation of damages, that she and an unmarried man had formerly lived alone together in the same house; that fact having been known to the defendant at the time of speaking the words. Reynolds v. Tucker, 6 Oh. St. 516.

() Maynard v. Beardsley, 7 Wend. 560.

(*) Broughton v. McGrew, 39 Fed. Rep. 672.