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defendant, as "condition" was said by 2. In mitigation of exemplary, punitive, . the appellate court to mean “social
or vindictive damages. standing” in the legitimate and nat- The defendant in an action for libel ural construction of the word.
or slander can show that he is not In Harter v. Whitebread (1909) 38 wealthy to mitigate the amount of Pa. Super. Ct. 10, holding that, where added damages which the jury may plaintiff had made no effort to swell assess against him as punishment and the damages by showing that the de- example. Karney v. Paisley (1862) fendant was wealthy, the defendant 13 Iowa, 89 (dictum) (compare Bailey was properly denied the privilege of v. Bailey (1895) 94 Iowa, 606, 63 N. proving his poverty, the court simply W. 341; and see Sclar v. Resnick gave an opinion that “the injury sus- (Iowa) infra, II. C, 3); Johnson v. tained by a slandered plaintiff does Smith (1875) 64 Me. 553; Harter v. not wax or wane according to the Whitebread (1909) 38 Pa. Super. Ct. financial standing of the owner of the 10; Rea v. Harrington (1885) 58 Vt. tongue that circulates the slander.” 181, 56 Am. Rep. 561, 2 Atl. 475;
While the courts whose decisions M'Nutt v. Young (1836) 8 Leigh (Va.) support the rule that evidence of de
542. fendant's financial circumstances is See also Pavlovski v. Thornton relevant as bearing on punitive dam- (1892) 89 Ga. 829, 15 S. E. 822. ages do not seem to have generally Contra: Ware v. Cartledge (1854) intended the statement that the evi- 24 Ala. 622, 60 Am. Dec. 489; Case v. dence is admitted for that purpose as Marks (1866) 20 Conn. 248. exclusive, such a construction of the The ratio decidendi of the foregolanguage used in some of the cases ing cases is that, since the plaintiff is possible.
has the right to show that the defend
ant is a man of wealth in order to rec. On behalf of defendant.
cover added damages proportionate to 1. Generally.
his wealth, the defendant should, as In harmony with the general rule a matter of right, be permitted to of practice that a defendant is al- show that he is not in fact wealthy. lowed to disprove anything which the It would seem that, if such proof is plaintiff may be allowed to prove in
allowable in order to aggravate the å cause, it has generally been con- damages in such cases, when the desidered the complement of the rule fendant is wealthy, the court declared that the plaintiff can introduce testi- in Ware v. Cartledge (Ala.) supra, mony to show the actual or reputed "common justice would require that financial circumstances of the defend- a converse rule should prevail in the ant, either to aggravate punitive dam. case of poor defendants, and they ages or determine the amount of com- should be allowed to give their poverty pensatory damages, that the defendant in evidence to mitigate the damages.” should be allowed to show his actual But the court based the continuance poverty, or that he is not reputed to of its argument against the admisbe wealthy. But quite naturally the sibility of the evidence on behalf of courts have not been called upon the plaintiff upon the unsoundness of frequently to pass upon the admis- the reasoning in the quotation. “Yet sibility of such evidence on behalf of nearly all the books declare," the the defendant, and the question has court continued, "that this is not the been considered in only a few cases case, and common sense revolts at the based on a defamation. But it must idea of its adoption. For sad would be conceded that the position is open be the fate of that country whose to attack on several grounds, and the laws conceded to the insolvent view that the rule cannot be applied slanderer the privilege of perpetratto the defendant has been a contribut- ing his wrongs with comparative iming factor in the reasoning leading punity, under the assurance that, several courts to declare the evidence when sued for his practices, the damabsolutely inadmissible.
be graduated to his 34 A.L.R.-2.
present ability to pay them, and con- fluence-that his words carried little sequently would be merely nominal. weight, and did not reach the ears of No sound principle of law tolerates many people because he is poverty such a practice.” The foregoing stricken-does not commend itself as statement has been quoted with ap- embodying abstract justice, defendant proval in several of the cases cited in tort-feasors in many other kinds of subd. I. of this annotation. See Young actions are permitted to show that the v. Kuhn (Tex.) therein.
damage done defendant is not so great In Pavlovski v. Thornton (Ga.) as that alleged, nor so great as that supra, it is said in the syllabus by of the average case. The position the court that, “the worldly circum- contended for finds support in Benstances of the defendant not being nett v. Hyde (1825) 6 Conn. 24 (reshown," the verdict of the jury did jected in Case v. Marks (1850) 20 not appear excessive.
Conn. 248), and Johnson V. Smith The supreme court of Connecticut (1875) 64 Me. 553, an action for asrefused, in Case v. Marks (Conn.) sault, where the court cites several supra, to follow a dictum in Bennett cases based on defamation as sustainv. Hyde (1825) 6 Conn. 24. In Case ing its conclusion that evidence ofv. Marks the court held that the de- fered by the defendant to diminish fendant cannot "prove his own pecu- punitive damages erroneously niary condition to shield himself from excluded, and says that the evidence the consequences of his own wrong." was likewise competent as bearing on
The arguments of the two cases compensatory damages, as the assault stating the minority view, pointed and had the elements of damage to the forceful though they are, do not seem character and insult to the personconclusive, and while they present citing Humphries v. Parker (1864) 52 cogent reasons why the
why the evidence Me. 507, which was a defamatory acmight be held inadmissible in favor tion, as sustaining its conclusion in of either party, it seems clear that a this regard. And in Sclar v. Resnick court which views the evidence as (1921) 192 Iowa, 669, 185 N. W. 273, competent on behalf of the plaintiff the following language is employed, cannot with any sense of justice deny arguendo: "If a plaintiff is entitled, the defendant the right to shield him- in a slander suit, to prove the wealth self from exorbitant punitive dam- of the defendant in order to draw the ages. Only one idea combats this inference therefrom that by reason of conclusion, and that is that a defend- such wealth his utterances have ant in straitened circumstances at the greater weight and cause greater time of trial may, at the time judg- damage to a plaintiff, then it logically ment is enforced, be able to respond, and consistently follows that it should but it is not thought that that reason, likewise be available to the defendant standing by itself, should control a charged with slander to prove that he determination of the question.
is reputed to be a man of limited
means. If there is any good reason 3. As a measure of compensatory dam
why the reputed wealth of a defendages. It would seem to follow as a com
ant should be established, on the plement of the rule that the plaintiff
theory that such wealth gives weight may introduce evidence of the defend
to his words, then the poverty of a deant's wealth or reputed wealth to
fendant is likewise available to him show that he is a man of influence,
as a defense.” The court, continuing thereby aiding the jury in estimating its argument, which resulted in a concompensatory damages, that the de- clusion that the “reputed wealth ini fendant should be allowed to show specific amount" is inadmissible on that he is not reputed to be wealthy, behalf of the plaintiff—thereby limitin order to diminish the amount of ing, but not overruling, a number of compensatory damages. While the earlier Iowa cases,--said, however: idea of permitting a defendant to “There is as much reason for the one show that he is a man of small in- rule as for the other, and both are itlogical. The establishment of such within the issues," the court said; a rule would have a tendency to lead "yet, if it be not given, all of his subthe jury away from the issue in the stance may be swept from beneath slander suit to the trial of the col- him, and the jury may ruin him, allateral matter respecting the wealth though they only intended to punish or poverty of the defendant.” And the him for his fault.” The reasoning of court expresses the view that the jury the court would seem to lead to the would have to consider "a collateral conclusion that where punitory dammatter wholly foreign to the issue in ages are recoverable the defendant the case, and, as we view it, not ger- should be allowed to show his poverty mane to its proper determination." in mitigation of such damages, even
While it must be conceded that dif- though the plaintiff has offered no ficulties may be encountered during evidence of his wealth. Johnson v. trial, in allowing a defendant to show Smith (Me.) supra, held it error to his poverty, the difficulties can, it deny the defendant the right to show would seem, be managed by a watch- his financial condition, even though ful trial court, and the difficulty of the plaintiff had offered no evidence handling facts is not generally re- on the subject. The action was for garded as affecting directly the ma- assault and battery, but, as heretoteriality of evidence setting forth the fore pointed out in this division, the facts. 10 R. C. L. 861.
court regarded the cause as deter4. Defendant's right as dependent on
minable by the same considerations
as an action for libel or slander. The plaintiff opening the inquiry.
court said that, the plaintiff having Harter v. Whitebread (1909) 38 Pa.
the right to show defendant's wealth, Super. Ct. 10, held that, where the
it was equally competent for the deplaintiff had made no effort to swell
fendant to show a want of wealth to the damages by showing that the de
diminish the damages to be assessed fendant was wealthy, the defendant
against him, and said that the waiving was properly denied the right to prove
of the right by the plaintiff was no his poverty. The holding of the case
reason why it should have been taken offers a partial solution of one of the
from the defendant. The court condifficulties attendant upon the intro
cluded: “Nor does the mere nonclaim duction of evidence by the defendant
of damages on that ground, the right of his poverty, heretofore pointed out
to punitive damages being still inin this division. In the Harter Case the defendant offered evidence of his
sisted upon, take it from the consider
ation of the jury. Hence, the exlimited means to diminish punitive
clusion of the testimony left them in damages. The reason given by the
darkness where they were entitled to court for its decision is that when a
light. If the plaintiff really intended plaintiff seeking damages for a def
to admit that the defendant was withamation does not attempt to recover punitive damages by showing that the
out means, the testimony could have
done him no harm; but such an addefendant is well able to respond, the
mission was not distinctly made, and, issue as to whether he is able to respond does not arise.
in the absence of it, the exclusion of But several other courts which have
the testimony would be injurious to been called upon to consider the mat
the defendant. It certainly deprived ter have arrived at the opposite con
him of a legal right." The reasoning clusion. Johnson v. Smith (1875) 64
employed in the Johnson Case was Me. 553; Rea v. Harrington (1885) approved and followed in Rea v. Har58 Vt. 181, 56 Am. Rep. 561, 2 Atl. rington (Vt.) supra. 475. And see M’Nutt y. Young (1836) Mullin v. Spangenberg (1884) 112 8 Leigh (Va.) 542, where it is said Ill. 140, while not a case within the that evidence may be offered by the scope of the annotation, throws some defendant to show that his property light on the point here considered. is small, and that he has a wife and The case was an action for assault children to maintain. “This is not and battery, which held that the de
fendant could not introduce evidence introduced where punitive damages of his pecuniary circumstances except are recoverable against a single dein rebuttal of testimony offered by fendant; the court was not called plaintiff as to his wealth, to enhance upon to decide, nor did it attempt to damages. The court said: “Where a decide, the question whether the eviplaintiff entitled to vindictive damages dence of the wealth of one of joint offers no evidence of the defendant's defendants is admissible as bearing wealth with a view of enhancing them, on exemplary damages, where punihe, in effect, says, 'I ask no damages tory damages are recoverable against against the defendant except as such defendant, but not against his mere individual, without any regard codefendants, nor the several other to his property or estate, whether it questions that may arise out of facts be much or little'-and in that kind closely similar to those in that case. of a case the jury have no right to In the several cases in which it has give any more damages than they been observed that there was more would if it had affirmatively appeared than one defendant, that fact, standthe defendant was without pecuniary ing by itself, has not been regarded resources. But where the testimony as sufficient reason for the exclusion is offered by the plaintiff, he does it of evidence of the financial condition for the purpose of enhancing the dam- of one or more of the several joint ages. By offering it he, in effect, says, defendants. See the following cases : 'I ask in the way of damages some- Calderin v. Español (1908) 4 Porto thing more than I would be entitled Rico Fed. Rep. 376; Taylor v. Pullen to recover from the defendant as a (1899) 152 Mo. 434, 53 S. W. 1086; mere individual, without regard to Leavell v. Leavell (1905) 114 Mo. his pecuniary circumstances.' In do- App. 24, 89 S. W. 58; Mauk v. Bruning this, the plaintiff tenders a new dage (1903) 68 Ohio St. 89, 62 L.R.A. issue of fact, which opens up the 477, 67 N. E. 152; Mix v. North Amerquestion to both sides."
ican Co. (1903) 29 Pa. Co. Ct. 137;
Gagen v. Dawley (1916) 162 Wis. 152, d. Where more than one defendant.
155 N. W. 930. Evidence of the wealth of one of
In Leavell v. Leavell (1905) 114 the defendants in a defamatory ac
Mo. App. 24, 89 S. W. 58, supra (an tion, offered as bearing on the allow
action for alienation of affections), ance of exemplary damages, is inad
it is said, where there are two defendmissible in a case when the verdict
ants in a tort action in which punitive must be for one entire sum against all the defendants found guilty, and may
damages are recoverable, evidence of
the wealth of one of the defendants be collected from any one of them,
is inadmissible (even though the dewho would have no right of contribu
fendants are husband and wife, since tion. Washington Gaslight Co. v.
the husband should not be punished Lansden (1899) 172 U. S. 534, 43 L.
"for the utterance of an unruly tongue ed. 543, 19 Sup. Ct. Rep. 296. And
which he was powerless to withmerely charging the jury that punitive hold”), relying on the Washington damages cannot be recovered will not, in such an action, cure the erroneous
Gaslight Co. Case (U. S.) supra. But reception of evidence of the wealth of
the court took the position that where one of the defendants, when this evi
the question of compensatory damdence is not specifically withdrawn.
ages is affected by the wealth of any Ibid. While the foregoing case has
one of the defendants, the evidence been relied on as authority for various
would be admissible, since as to comholdings relating to the admissibility pensation “every wrongdoer is liable of the wealth of the defendant in a for full compensation, whether he be defamatory action, the statements rich or poor.” above seem to contain all the law de- The reasoning of the court in the clared in the case, save that it may foregoing case seems sound, and is be relied on as admitting that the supported by the case of Mauk v. practice that such evidence may be Brundage (1903) 68 Ohio St. 89, 62
L.R.A. 477, 67 N. E. 152, which held no dividends may have as extensive that evidence of the financial stand- a circulation as one published by a ing of certain of the defendants in a corporation which is reputed to pay libel suit is competent as bearing large dividends. . We upon the importance attached to their see no reason or justice in extending words in the community where ut- this rule [admitting evidence of detered.
fendant's reputed wealth] to corporaAfter deciding that evidence of the tions, and thus giving an opportunity wealth of a defendant in an action of for appeals to the sympathy and prejslander is not admissible, the court udice of juries to render verdicts not said in Austin v. Bacon (1888) 49 according to the actual damage susHun, 386, 3 N. Y. Supp. 587, that since tained, but to the ability of the dethe words complained of were spoken fendant to pay.” The “appeal” to be by the wife of the defendant whose guarded against was made in the heat wealth was sought to be shown, hus- of trial in the instant case, and reband and wife having been joined as sulted in what appeared to be an exdefendants, the position in life of the cessive verdict. Such fact may have husband as shown by his wealth was contributed to the conclusion of the unimportant.
court. While the court's language Mix v. North American Co. (1903) embraces all corporations, the force 29 Pa. Co. Ct. 137, held it was no of its reasoning only comprehends error to admit evidence of the wealth publishing corporations, and may be of one of joint defendants, as the distinguished on this ground. It may plaintiff could have offered the same also be observed that the rule adopted evidence as to the others, or discon- is inapplicable to cases where the tinued suit as to them, the court giv- financial circumstances of a defending as a further reason to sustain its ant are to be considered as a graduate conclusion, that the objection to of- of punitive damages. fering the evidence as to one only of In the following cases evidence the defendant must be seasonably touching on the wealth of a corporamade, and such objection, when made tion which was being sued for a defupon motion for a new trial, is out amation was not regarded as having of season.
been rendered inadmissible by reason
of the fact that the defendant was an e. Where a corporation is defendant.
Washington GasIn Randall v. Evening News Asso.
light Co. v. Lansden (1899) 172 U. S. (1893) 97 Mich. 136, 56 N. W. 361,
534, 43 L. ed. 543, 19 Sup. Ct. Rep. it was held under the rule followed
296; Western U. Teleg. Co. v. Cashin Michigan that only the reputed
man (1904) 65 C. C. A. 607, 132 Fed. wealth of a calumniator is admissible, as that is an element of the defend
805; Buckeye Cotton Oil Co. v. Sloan ant's power to inflict an injury to (1918) 163 C. C. A. 44, 250 Fed. 712; character, and that such evidence is
Tingley v. Times Mirror Co. (1907) not admissible in a case where the
151 Cal. 1, 89 Pac. 1097; Scott v. defendant is a publishing corpora
Times-Mirror Co. (1919) 181 Cal. 345, tion. The reason upon which the de- 12 A.L.R. 1007, 184 Pac. 672; Galcision is based is that a corporation lagher v. Singer Sewing Mach. Co. “has no social rank or social influence (1913) 177 Ill. App. 198; O'Malley v. to be augmented by its wealth or
Illinois Pub. & Printing Co. (1915) diminished by its poverty. It is not 194 Ill. App. 544; Cotton Lumber Co. a member of society. Its libelous ut
v. La Crosse Lumber Co. (1918) 200 terances will sting and injure accord- Mo. App. 7, 204 S. W. 957; Brown v. ing to the extent of its circulation, Globe Printing Co. (1908) 213 Mo. the character of the paper published, 655, 127 Am. St. Rep. 627, 112 S. W. as it is known by its publications, 474; Cook v. Globe Printing Co. and the character of the party as- (1910) 227 Mo. 471, 127 S. W. 332; sailed. A newspaper published by a Sotham v. Drovers Teleg. Co. (1911) corporation which is reputed to pay 239 Mo. 606, 144 S. W. 428.