Warner v. Lockerby
| Decision Date | 23 January 1884 |
| Parties | Stephen Warner v. M. L. Lockerby |
| Court | Minnesota Supreme Court |
On reargument, March 17, 1884. Rehearing Denied 31 Minn. 421 at 426.
Action for slander, brought in the district court for Blue Earth county. At the trial before Macdonald, J., (acting for the judge of the 6th district,) and a jury, the defendant had a verdict. Plaintiff appeals from an order refusing a new trial. A decision on a former appeal in this case will be found in 28 Minn. 28.
On the trial, plaintiff and one Schroeder testified to the speaking by defendant, of the following defamatory words addressed to the plaintiff, viz.: "You had better go and pay for that overcoat you stole," being the words charged in the complaint. Defendant and one Akers testified substantially that defendant said to plaintiff, "I ain't stole an overcoat as they say you did," and that upon plaintiff's saying, "Who says so?" the defendant replied,
One Spaulding, sworn as a witness on behalf of plaintiff, was asked the following questions in regard to defendant, viz "Do you know what his reputation is in Blue Earth county where you are acquainted?" and "Do you know what the general reputation of Mr. Lockerby was in the neighborhood of Mapleton, where he formerly resided before he moved to this place?" and, on defendant's objection they were excluded.
Motion denied.
P. A Foster and Brown & Wiswell, for appellant.
The words charged are actionable per se, and it is the unquestionable rule of law in such cases that both malice on the part of defendant and intention to charge a crime are conclusively presumed from the speaking of the words. Simmons v. Holster, 13 Minn. 232, (249;) Shull v. Raymond, 23 Minn. 66; Lick v. Owen, 47 Cal. 252; Miller v. Johnson, 79 Ill. 58; Hamilton v. Eno, 81 N.Y. 116; Commonwealth v. Odell, 3 Pittsburg, 449; Wilson v. Noonan, 35 Wis. 321; Wilson v. Noonan, 27 Wis. 598. Aggravation is not a defence in bar, but only in mitigation of damages. Mousler v. Harding, 33 Ind. 176; Jauch v. Jauch, 50 Ind. 135; Flagg v. Roberts, 67 Ill. 485; Miles v. Harrington, 8 Kan. 425. The court therefore erred in charging the jury that the plaintiff cannot recover if they should find that the words were spoken through aggravation caused by the plaintiff, unless they should find that the words were spoken maliciously and with the intent to charge the plaintiff with a crime.
Daniel Buck and Freeman & Pfau, for respondent.
Action for defamation. The record in this case contains so large a number of exceptions -- many of them without special merit -- that it would be neither practicable nor profitable to consider them all in detail. We shall, therefore, content ourselves with considering such as we deem worthy of special notice, and pass over the others with the general remark that we do not think any of them were well taken.
1. The answer, by a general denial, puts in issue the publication of the words charged in the complaint, and then sets up certain matters in mitigation of damages, among which is previous provocation of defendant by plaintiff, and an allegation that whatever was said by defendant on the occasion referred to in the complaint was spoken in the heat of passion caused by the abusive and provoking language of plaintiff towards defendant. There is nothing inconsistent between the denial and the matter set up in mitigation. The plea in mitigation neither expressly nor impliedly admits the publication of the words charged. A defendant may, with an answer denying the allegations of the complaint, set up any matters in mitigation of damages. A party has a right to set up as many defences, either complete or partial, as he chooses, provided they are not inconsistent. Gen. St. 1878, c. 66, § 98; Bush v. Prosser, 11 N.Y. 347.
2. There is a conflict of evidence as to whether the words charged were published. If the words spoken were as testified to by defendant or Akers, there would be a material variance between them and the words as charged and testified to by plaintiff and Schroeder. Hence, under the pleadings and evidence, the question of publication was properly submitted to the jury.
3. The words charged were spoken, if spoken at all, on the evening of December 17, 1879, during a general quarrel between the parties, which was a mere renewal or rather continuance of one which commenced at an earlier hour of the same day and on the same subject. It was therefore entirely proper to admit evidence of the altercation in the afternoon, for the purpose of showing that plaintiff commenced the quarrel, and provoked the defendant by abusive and irritating language. A plaintiff's previous conduct in provoking the speaking of the defamatory words may always be shown in mitigation of damages, if the provocation be direct and immediate. In this case, certainly, the provocation in the afternoon, of which that in the evening was but a continuance, was sufficiently direct and immediate.
4. The defamatory charge was that of larceny. The court allowed the defendant, in mitigation of damages, to inquire as to plaintiff's general reputation for honesty and integrity. Some authorities hold that plaintiff's general bad character may be shown. Others hold that the inquiry should be limited to the particular traits of character involved in the charge. It is not necessary now to...
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