Williams v. Greenwade

• Court: Kentucky Court of Appeals
• Writing for the Court: ROBERTSON, CHIEF JUSTICE:
• Citation: Williams v. Greenwade, 33 Ky. 432 (Ky. Ct. App. 1835)
• Decision Date: 29 October 1835
• Parties: Williams v. Greenwade and Wife.

33 Ky. 432

Williams v. Greenwade and Wife.

Court of Appeals of Kentucky.

October 29, 1835

FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY.

Mr Hanson and Mr. Loughborough for Plaintiff

Mr Apperson for Defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

Statement of the case.

This is an action of slander by Greenwade and wife, against Williams for falsely and maliciously uttering and publishing the following words; --" negro Jude said that Mrs. Greenwade was a drunken whore, and it is rumored every where." --On the general issue, verdict and judgment were rendered for one hundred dollars in damages; and Williams now urges three objections to the judgment; first--that the words are not actionable; --second--that the circuit court erroneously permitted evidence to be given of the good character of Mrs Greenwade, when her reputation had not been assailed by any evidence on his part; --and, third--that the court also erred in refusing to permit him to prove, that " negro Jude, had " said" that Mrs. Greenwade was " a drunken whore."

The first and second objections are certainly untenable. As the statute of 1811 makes a charge of fornication or adultery slanderous and therefore actionable, the words uttered in this case, necessarily import slander, because it is impossible to be a whore without being guilty of fornication or adultery; and to repeat a slander, as coming from another, may be injurious and wrongful, and when it is so, is of course, actionable. And, as injury to character is the gravamen of slander, goodness of character may be proved in aggravation, as badness of character may be shown in mitigation, of damages in an action of slander.

To say a female " is a ??runken whore," is to accuse her of fornication or adulte??y--which is actionable by statute. (S. L. 344.) The repetition of another's slander may be actionable.

In suit for slander, evidence of good character, in aggravation--as well as of bad, in mitigation, of damages, is admissible.

Matters that may be pleaded in justification of a slander, are not generally, admissible in mitigation.

Facts tending to show aggravated, or actual malice, may be p??ed; and, e converso, facts (not a justification,) to show, that there was no malice, or less than would be presumed, may be proved, in mitigation; and with that view, a defendant may prove that the words were only a statement of what another had said.

But the third objection is more imposing.

In slander it is a general rule, that matter which may be pleaded in justification is inadmissible as evidence in mitigation; because, the defendant having failed to rely, in his defence, on the truth of the charge, the plaintiff might be surprised by an attempt to prove it. 1 Chitty on Plea. 531; Shephard v. Merril 13, Johnson's Rep. 475.

It is also a general rule, in the same species of action, that a fact tending to prove actual malice, or to show that it was peculiarly rancorous, may be proved in aggravation of damages, and that e converso --subject, however, to the exception in the foregoing rule--a fact tending to show, that there was no malice, or to reduce it in degree, may be admissible as evidence in mitigation; and consequently--subject to the execution of matter of justification--proof that a party had only repeated what he had heard, might be admissible in mitigation, because, as great a degree of malice may not be implied in the repetition, as in the origination of a charge importing slander. 2 Starkie on Ev. 880.

It would seem, then, that, if Williams could not have pleaded in justification the fact which he offered to prove in mitigation, his evidence was improperly rejected--the jury, and not the court, having a right to determine how far the fact that he had previously heard " negro Jude" say what he published, as having been said by her, was entitled to consideration in deciding on the degree of malevolence by which he was actuated.

It is well settled, that a person sued for uttering as true, slanderous words, can not justify by pleading that he had heard what he had uttered. 2 Starkie, supra and the cases therein cited, and Smally v. Anderson and wife, 4 Mon. 368.

It has been said, however, that a defendant, sued for repeating, as coming from another person, words importing slander, may plead in justification, the fact that the person, to whom, as the author, he had referred, in repeating the slanderous words, had previously uttered them, as he had only said he d...