Conroe v. Conroe and Wife

• Decision Date: 02 April 1864
• Parties: Conroe <I>versus</I> Conroe and Wife.
• Court: Pennsylvania Supreme Court

Page 198

47 Pa. 198

Conroe versus Conroe and Wife.

Supreme Court of Pennsylvania.

April 2, 1864.

ERROR to the Common Pleas of Warren county.

Wetmore & Clark, for plaintiff in error.

B. W. Lacy, for defendants in error.

The opinion of the court was delivered, April 2d 1864, by

STRONG, J.

It was not erroneous to allow the amendment to the declaration of which the plaintiff in error complains. It is not clear that the added count introduced a new cause of action, or anything more than a new form of statement of the same slander averred in the first counts. Besides, the amendment may be regarded as one at common law, and not made under the Act of 1806. If so, it was within the discretion of the court below: Tryon v. Miller, 1 Whart. 17, 18.

The second assignment of error has more foundation. The case was an action for slander, and the averments of the declaration were that the defendant had imputed unchastity to the plaintiff, not by a charge of a particular act of lewdness, but by calling her in general terms, a whore. The general issue alone was pleaded, and under it the defendant offered in mitigation of damages, evidence to prove that the general reputation of the plaintiff for chastity was bad. This the court excluded. The general reputation of the plaintiff was allowed to be given in evidence, but not her general reputation for chastity. We have not the rejected depositions before us. What was rejected we gather only from the bill of exceptions. Looking to that, we must assume the court overruled not reports of single acts of incontinency, not occasional rumours of want of chasity in the plaintiff, but proof that her general reputation was that of an unchaste woman. Without undertaking to review at length the numerous decisions made, especially in the English, Massachusetts, and New York courts, upon the question how far, in actions of slander, the defendant may, under the plea of not guilty, attack the character of the plaintiff, it may be safely said to be almost everywhere settled, that evidence of general bad reputation is admissible in mitigation of damages. Whether reputation in that department of character which the alleged slander has assailed may be given in evidence, is perhaps not so well established by authority. In many of the cases the question has been embarrassed by the pleadings. There has been no plea of not guilty, or it has been accompanied with a plea or notice of justification. Thus in Root v. King, 7 Cowen 613, upon which the defendant in error so largely relies, and which was cited by Judge Coulter in Steinman v. McWilliams, 6 Barr 170, the defendant admitted the publication of the libel, and undertook to justify.

There it was held that public report of a fact stated in a libel cannot be given in evidence after the defendant has pleaded or given notice of justification; and that such plea or notice precludes all other evidence in mere mitigation; but in delivering the opinion, Chief Justice Savage said: "Had such evidence been offered under the general issue alone, with a view to show the court and jury there was no malice in the defendants, because in reality they only repeated what every one else did, and what the plaintiff's conduct led them to believe was the truth, a very different question would have been presented. They would then have brought themselves within some of the recent English cases, which now have no application to this case, because the question arose under a totally different state of pleadings." In our own case of Steinman v. McWilliams, 6 Barr...