Enos v. Enos

• Decision Date: 04 October 1892
• Citation: 32 N.E. 123,135 N.Y. 609
• Parties: ENOS v. ENOS.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 609

32 N.E. 123

ENOS

v.ENOS.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, fifth department.

Action by Emma K. Enos against John A. Enos for slander. From a judgment of the general term (17 N. Y. Supp. 604) affirming a judgment for plaintiff, defendan appeals. Affirmed.

A. C. Narwick,(John Gillette, of counsel,) for appellant.

Huson & Dwelle, for respondent.

ANDREWS, J.

The words proved by the witness Burt imputed a charge of unchastity, and were, we think, admissible under the rule which permits proof of a repetition by the defendant before the commencement of the action of the slander charged in the complaint, as bearing upon the degree of malice which actuated him in speaking the words laid. Root v. Lowndes, 6 Hill, 518;Howard v. Sexton, 4 N. Y. 157;Frazier v. McCloskey, 60 N. Y. 337. The words testified to by Burt are not the same words, nor substantially the same words, laid in the complaint, but they were of the same import, or, at least, the jury might so find. They would not, under the rules of pleading, if they had been relied upon to sustain the action, have been provable without an amendment of the complaint, because the words laid must be proved in substance; and different words, although imputing the same charge, but entirely different language, will not support the complaint. But where the object of proving other words is to show the malicious intent of the defendant in speaking the words laid, then, provided they impute the same, and not a different, charge, or a charge of a different nature, there seems to be no reason for excluding them in view of the general rule and the purpose for which repetitions are admissible. If the words are a repetition of the same calumny, the particular form of words in which the repetition is clothed would seem to be immaterial. They would equally bear upon the malice of the defendant, as if the repetition was verbally exact, and I perceive no reason why their proof in an action would not bar another action by the plaintiff, founded thereon, to the same extent as if the words were identical. See Root v. Lowndes, supra. We think the trial judge erred in his charge to the jury in respect to the evidence of Burt. He dwelt at considerable length upon it, and in such terms instructed the jury that, if they found that the defendant intended by the words to charge the plaintiff with unchastity, they might base their verdict upon them. The words, as has been said, did not sustain the complaint. They were not the words counted on, nor substantially similar words. They were admissible, as has been stated, as bearing upon the degree of malice of the defendant in speaking the words in the complaint. But the authorities are uniform that words proved as repetitions of the slander charged are not an independent ground of action in the case, and that no recovery can be had for uttering them. They reflect upon and strengthen the claim for damages on account of the words charged. If the defendant had excepted to the part of the charge referred to, or in any other way had raised the question by a proper exception that...