Small v. Chronical & Gazette Pub. Co.

• Decision Date: 06 July 1950
• Parties: SMALL v. CHRONICAL & GAZETTE PUB. CO.
• Court: New Hampshire Supreme Court

Page 544

74 A.2d 544

96 N.H. 265

SMALL v. CHRONICAL & GAZETTE PUB. CO.

Supreme Court of New Hampshire.

July 6, 1950.

William H. Sleeper, Robert Shaw and Wayne J. Mullavey, all of Exeter, for plaintiff.

Hughes & Burns and Donald R. Bryant, Dover, for defendant.

LAMPRON, Justice.

Whether justice requires that a new trial should be had upon the ground of newly discovered evidence is a question of fact for the Trial Court. McGinley v. Maine Cent. Railroad Co., 79 N.H. 320, 321, 109 A. 715; Jackson v. Smart, 89 N.H. 457, 458, 200 A. 789; State v. Long, 90 N.H. 103, 107, 4 A.2d 865, 868, 6 A.2d 752; However, 'it is always the duty of this court to determine as a matter of law whether the evidence on which the trial justice has based his findings is such that those findings can reasonably be made.' State v. Long, supra; Roy v. Chalifoux, 95 N.H. 321, 324, 63 A.2d 226.

To authorize the finding that a new trial should be granted under the provisions of R.L. c. 398, § 1, upon the ground of newly discovered evidence, it must appear, among other requisites, that this evidence is not only material to the issues joined, McGinley v. Railroad, supra, but that it is moreover of such a character as to be admissible under the rules governing the competency of evidence. Delisle v. Smalley, 96 N.H. 58, 59, 69 A.2d 868; Sessmer v. Commonwealth, 273 Ky. 40, 45, 115 S.W.2d 337; Deeble v. Stearns, 82 Cal.App.2d 296, 186 P.2d 173; 39 Am.Jur. 171.

In our opinion the evidence offered by the defendant in support of its motion for a new trial did not meet the latter requirement. This evidence related to particular acts of misconduct on the part of the plaintiff. A defendant in an action for slander may introduce, for the purpose of reducing the damages, evidence to show that the plaintiff's general character or reputation is bad, but evidence of particular facts tending to establish the plaintiff's reputation is inadmissible. True these acts of misconduct and the publicity given to them may have affected his reputation. If they have then evidence of his reputation alone suffices to show it. Lamos v. Snell, 6 N.H. 413, 25 Am.Dec. 468; Pallet v. Sargent, 56 N.H. 496; Knight v. Foster, 39 N.H. 576; Bausewine v. Norristown Herald, 351 Pa. 634, 41 A.2d 736; Tokmakian v. Fritz, R.I., 67 A.2d 834; 53 C.J.S., Libel and Slander, § 267 p. 387; 33 Am.Jr. 269; 1 Wig. Ev. 3d Ed., §§ 70, 209; 43 A.L.R. 887, 890; 130 A.L.R. 854, 858.

The defendant further contends in its brief that the evidence offered in support of its motion for a new trial is also admissible to show 'that the plaintiff was not a man whose feelings would be easily wounded. He had been involved in various criminal actions which had received wide publicity. He had not endured the same mental suffering which a man with a spotless reputation and character would endure upon being charged with crime'. This evidence it is argued would be admissible to rebut plaintiff's claim of mental suffering. This type of evidence is open to the same objections as renders inadmissible evidence of particular acts of misconduct in mitigation of damages in an action of this type. Curley v. Curtis Publishing Co., D.C., 48 F.Supp. 27.

The evidence adduced by...