Gray v. Elzroth

• Decision Date: 15 May 1894
• Docket Number: 1,128
• Citation: 37 N.E. 551,10 Ind.App. 587
• Parties: GRAY v. ELZROTH
• Court: Indiana Appellate Court

37 N.E. 551

10 Ind.App. 587

GRAY v. ELZROTH

No. 1,128

Court of Appeals of Indiana

May 15, 1894

Petition for a rehearing overruled Sept. 27, 1894.

From the Cass Circuit Court.

Judgment affirmed.

J. C Nelson, Q. A. Myers, D. D. Dykeman, W. T. Wilson and G. C Taber, for appellant.

M. D. Fansler and M. F. Mahoney, for appellee.

OPINION

GAVIN, J.

The appellee sued appellant for slander. In her complaint she alleges that he charged her with having committed adultery with himself, with being a prostitute, and also imputed adultery to her by charging that her husband was not the father of any of her five children.

A general and special denial formed the issues.

It is by statute actionable slander to charge a woman with adultery. Binford v. Young, 115 Ind. 174, 16 N.E. 142; R. S. 1894, section 286.

Complaint is made of the rejection of appellant's offer to prove that for the last nine years "it has been currently circulated and reported in the neighborhood where this woman lived that these children are not the children of her husband, Elzroth."

Counsel seek to maintain the admissibility of this evidence as in mitigation by the ruling of the Supreme Court in Blickenstaff v. Perrin, 27 Ind. 527, where it is said: "General rumors, or a general suspicion that the party is guilty of the acts imputed, may be given in evidence in mitigation of damages, but evidence of mere reports, rumors, or suspicions is not admissible."

In that very case, where we find this general language upon which appellant relies, we find it also expressly decided that matter such as was here offered is not proper matter in mitigation. It was there held that the fact that it was at the time of the speaking of the words "currently reported in the neighborhood in which the plaintiff lived and in adjacent parts of the county, that plaintiff had been in a house of bad reputation, to wit, a house of ill-fame in the city of Lafayette, in said State, which report had come to the ears of said defendant" and was by her repeated without malice, was not proper matter in mitigation.

Following the express decision of that case there was no error in rejecting the offered evidence.

By another witness, Richard Coble, the appellant offered to prove that at the time of the alleged charge made in the complaint there was a general rumor, general suspicion in the neighborhood where this woman lived and had been for seven or eight years, that she was a prostitute, a woman "guilty of associating with other men during the lifetime of her husband."

So far as the offer covers the rumor that she was a prostitute, it is unavailing for the reason that such a fact is not called for by the question asked. A proper question to which the offered evidence would be responsive was essential to enable appellant to raise any question upon it. Darnell v. Sallee, 7 Ind.App. 581, 34 N.E. 1020; authorities cited in Benjamin v. McElwaine-Richards Co., 10 Ind.App. 76, 37 N.E. 362.

This leaves then available to the appellant that portion of the offer which relates to the report that she was "guilty of associating with other men during the lifetime of her husband." Whatever wrong, if any, was involved in this report was fully covered by, and included in, the evidence which had been already given by this same witness, that her character for chastity had not been good in that neighborhood for the past eight or ten years.

Counsel have cited many authorities and discussed at length, and with much learning, the question as to whether evidence of general reports of the guilt of plaintiff as to the particular vice or crime charged is admissible in mitigation of damages, both upon the ground that it proves the plaintiff's character to be less valuable (being already smirched) and because it tends to rebut malice upon the part of the defendant. Upon these questions, we find both the authorities and text-books in much conflict and confusion. There is no principle upon which all can be harmonized.

In Odgers Libel and Slander (2d Eng. ed.), 312, 313, it is declared that, save in one or two exceptional cases, such evidence is inadmissible for any purpose. To the same effect is Mahoney v. Belford, 132 Mass. 393.

The text of Newell on Slander and Libel follows that of Odgers largely, but the numerous authorities collated are divided, some being for and some against the proposition.

Townshend on Slander and Libel, section 411, says that some cases permit such evidence, but numerous decisions hold the contrary.

In Folkard's Starkie on Slander and Libel, sections 714-719, it appears that the authorities preponderate slightly in favor of the admission of such evidence.

In some cases the existence of a general report of plaintiff's guilt of the charge imputed has been admitted to rebut malice. Calloway v. Middleton, 2 A.K. Marsh. 372; Young v. Slemons, 1 Wright (O.) 124; B v. I , 22 Wis. 372.

In the case last cited, the statement appears to be wholly unsupported as to this point, by the authority relied on to sustain it, viz.: v. Moor, 1 M. and S. 285.

In a few cases, also, the existence of mere reports communicated to the defendant have been admitted to show the motive. Galloway v. Courtney, 10 Rich. (S.C.) 414; Williams v. Greenwade, 33 Ky. 432; Kennedy v. Gregory, 1 Binney 85.

In our own State all the authorities seem to be in accord that mere reports and rumors of guilt are not to be received, but that general rumors or reports of such guilt are admissible, but the ground of their admission is placed upon the fact that they throw light upon the character of the plaintiff and its value. Sanders v. Johnson, 6 Blackf. 50; Kelley v. Dillon, 5 Ind. 426; Blickenstaff v. Perrin, 27 Ind. 527.

In Kelley v. Dillon, supra, it is said: "In the cases of Henson v. Veatch and Sanders v. Johnson this court has distinctly drawn the line between rumors and suspicions, and general rumors and general suspicions. While the former have been held wholly inadmissible, the latter have been allowed, not to prove the truth of the words, but to show the character the plaintiff sustained at the time the words were spoken, for the purpose of measuring the damages."

In Blickenstaff v. Perrin, supra, after stating that general rumors, etc., are allowable, while mere rumors, etc., are not, the court says: "The reason for the distinction is plain. If, before the speaking of the words complained of, there exists a general rumor or suspicion that the party is guilty of the criminal act charged against him, the character is already traduced, and the evidence is, in effect, the same as that of general bad character in reference to the crime imputed, which is only admissible when the charge has obtained general notoriety, and a general belief or suspicion of its truth is entertained.

"Here it was not alleged that the report referred to was general, nor that any belief or suspicion of its truth was entertained, even by those who heard it, and therefore it was not proper matter in mitigation."

Thus it is plain that in our State evidence of these general rumors is received because such evidence is the same in kind and quality, at least, as proof of general bad character with reference to the vice or crime imputed.

While there is some authority to support the claim that such evidence may be heard to rebut malice, our own decisions, to which we have referred, and the weight of authority outside of our State, are to the effect that such evidence is received in mitigation simply to show the value of the character attacked and because a slander will not inflict so much damage upon a character already disparaged and sullied as upon one pure and unsullied. Clark v. Brown, 116 Mass. 504; Mahoney v. Belford, 132 Mass. 393; Drown v. Allen, 91 Pa. 393; Wetherbee v. Marsh, 20 N.H. 561; v. Moor, supra.

There was here no question of privilege, and where there is no confidential relation, no existing duty to speak, and no common interest, a private individual has no right to repeat a slanderous accusation merely because he has heard it. Burton v. Beasley, 88 Ind. 401; Branstetter v. Dorrough, 81 Ind. 527.

We are unable to say there was any harmful error in the court's refusal to permit a witness to answer the question, "Did you hear...