Sample v. Wynn

• Decision Date: 30 June 1853
• Citation: 44 N.C. 319
• Court: North Carolina Supreme Court
• Parties: JEREMIAH W. SAMPLE v. THOMAS WYNN.

44 N.C. 319

JEREMIAH W. SAMPLE

v.THOMAS WYNN.

Supreme Court of North Carolina.

June Term, 1853.

A plaintiff in an action of slander, is entitled to give in evidence, in chief, his general character.

(The case of Mc Cauley v. Birkhead, 13 Ire. 29, cited and approved.)

THIS was an action on the CASE FOR SLANDER, in charging the plaintiff with bestiality. The pleas upon the record were-- general issue--justification--stat. limitations--accord and satisfaction and confidential communication.

On the trial, before SAUNDERS, Judge, at Perquimons, on the last Spring Circuit, the plaintiff, after the examination of several witnesses, offered to prove a good character for himself; but this testimony being objected to, was ruled out. The defendant offered no evidence. As to the testimony ruled out, his Honor charged the jury that he had excluded the evidence of character, because all men were presumed to have a good character, until the contrary appeared; that they were to take the plaintiff as a man of good character.

The jury found a verdict for the plaintiff, assessing his damages at fifty dollars; whereupon the plaintiff's counsel moved for a rule to show cause why a new trial should not be granted; the rule was discharged, and the plaintiff appealed.

Heath and Jordan, for the plaintiff .

W. N. H. Smith and Jones, for the defendant .

NASH, C. J.

Upon the trial of this case, the plaintiff offered evidence to prove that his general character was good. This evidence was ruled out by the Court, upon the ground that all men were in law, presumed to have a good character until the contrary appeared. The jury therefore were instructed to consider the plaintiff as a man of good character. That the defendant may show the bad character of the plaintiff in mitigation of damages is not denied, and it is equally undoubted that to rebut such evidence the plaintiff may show his general character to be good; but it is denied that such evidence can be given in chief, because the law presumes every man to have a good character. The question is a vexed one, both in this country and in England. Thus Mr. Starkie 2nd Vol. on Evi., p. 216, in an action of slander imputing dishonesty to the plaintiff, who was the defendant's servant, the plaintiff may prove his good character before it is impeached by the defendant, by any evidence. On the next page he lays it down as a general rule that the plaintiff cannot go into such evidence to increase his damages until evidence has been given to impeach it. On page 218, Mr. Starkie says, it has been even held that where the defendant has attempted to impeach the general character of the plaintiff on cross examination of his witnesses, and has palpably failed, that the plaintiff cannot call witnesses to his good character. The case cited by him is that of King v. Francis, 3 Esp. Cases, 116, before Lord Kenyon. It was but due to that eminent and able Judge, that the dissent of the author should be expressed with great modesty, and so it is. His language is, “It may be doubted whether this is not carrying the general doctrine too far.” Mr. Stephens, in his Nisi Prius, 3d Vol. 2578, says that testimony of the general good character of the plaintiff cannot be given in evidence in the first instance. In Mr. Starkie's treatise on slander the contrary is held, pages 77 and 86. If we turn to the treatises of eminent American jurists, we find that the doctrine is proclaimed as settled. That in actions of slander the plaintiff's general character is in issue, and therefore evidence showing it to be good or bad, and consequently of much or little value, may be offered on either side to affect the amount of damages, 2d Green. Ev. 280. The character of Mr. Greenleaf's treatise on Evidence stands very high, and his doctrine is sustained by the Supreme Court of New York, in Gilman v. Lowell, 8 Wendall, 578. “The character of the plaintiff is a proper subject of investigation in ascertaining the amount of damages which he is entitled to recover.” We think that in the clash of authority we are at liberty to look to the reasons which support the opposite sides. It is a general rule recognized by all writers, that in civil proceedings, unless character be put directly in issue by the nature of the proceedings, evidence of the general character of neither party is...