Rigden v. Wolcott

delivered the opinion of the court.

This was an action of slander, in which issue was joined on the plea of not guilty.

At the trial below, the speaking of the words charged in the declaration being proved, the defendant offered evidence in mitigation of damages, of probable cause of suspicion at the time of speaking the words complained of, not amounting to proof of their truth; accompanied by a disclaimer of any intention to prove the commission by the *417plaintiff of the crime imputed to him; and by notice to the plaintiff given some time before the trial of the proof intended to be offered, and the evidence itself that was offered, going to exculpate the plaintiff from the charge, but showing a ground of suspicion of his guilt, at the time the words were uttered — which was rejected by the court as inadmissible, for the purpose for which it was offered.

The authorities upon this subject are very numerous, with some apparent inconsistency; but if examined, they will be found, it is apprehended, to differ not so much as to the principle involved, as in relation to the peculiar nature of the particular case, and the character of the evidence offered — not as to the principle itself, but the application of it.

The general rule, as we conceive, being that under the plea of non cul.; in an action for defamatory words, the defendant may give evidence of such facts and circumstances as show a ground of suspicion, not amounting to justification, or proof of guilt of the plaintiff, in mitigation of damages, but not in bar of the action. The words themselves, when used in a manner and sense to impute guilt, implying in contemplation of law, malice sufficient to sustain the suit, and entitle the plaintiff to a verdict, but the amount of damages depending on the degree of malice, of the malignity and wantonness of intention to injure, with which they were spoken.

Hence the discretion vested in the jury, to assess nominal or aggravated damages, according to the circumstances of the particular case, as a compensation to the plaintiff for a wound inflicted upon his feelings and character; and a punishment of the defendant for the wanton indulgence of his malignant propensities.

And hence, too, the practice and right of the plaintiff to give evidence of the express malice, and settled purpose of the defendant in the use of the words charged, to injure him in his character and standing in society.

*418If it was otherwise, and every case for words actionable per se, was made to depend upon the malice which the law implies, and of which the law knows no degrees, juries would have no criterion by which to measure the amount of their verdicts, and no grounds furnished them for giving exemplary damages, either as a compensation to the plaintiff, or a punishment of the defendant. And surely, he who impeaches the integrity of another, under an honest conviction of the truth of what he says, arising from probable grounds of suspicion, known to him at the time of speaking the words, is a less fit subject of aggravated damages, than one who goes through the country uttering malicious slanders, with the settled malignant purpose of destroying his neighbour’s character, knowing, at the time, that what he says is false.

The malice which the law implies, is of itself sufficient to support the action; but the damages to be commensurate with the offence, should be regulated by the quo animo, with which the words were spoken, for which the suit is brought. And for the very reason for which the plaintiff is permitted to give evidence of a degree of malice, beyond that which the law implies, in order to aggravate the damages, should the defendant be allowed to give evidence in mitigation, by showing that he uttered the words imputed to him upon probable grounds of suspicion of the plaintiff’s guilt, calculated at the time, to impress the belief of their truth ; and that they were not spoken, for the fiend-like purpose of falsely and wantonly destroying his character.

Though he cannot, under the plea of not guilty, be suffered to prove the truth of the words, or give evidence amounting to a justification; as that would be to subject the plaintiff to surprize, who looking to the defence placed by the plea upon the record, and not knowing the course intended to be pursued by the defendant at the trial, can only be expected to come prepared to prove the speaking of the words, and not to disprove their truth. If, there*419fore, the defendant has matter of justification, on which he means to rely, he should by his plea give notice to the plaintiff of that defence, in order that he may be prepared to meet it. But to deny to the defendant the right to show, in mitigation of damages only, on the plea of not guilty, the probable grounds of suspicion, on which he spoke the words complained of, and thus to explain his conduct, when he may subsequently to the time of speaking them have seen reason to change his opinion, would be to drive him, whether he will or not, and contrary to his own conviction at the time of pleading, to put in the plea of justification— which, if he fails to sustain, must often have the effect to increase the damages by furnishing proof on record of continued malice, though none, in fact, may continue to exist. And to force him to the alternative of hazarding such a plea, and to the proof in support of it, when he may not wish to offer it, but only desirous to vindicate himself, by explaining the ground on which he acted; or of submitting to the imputation of malignity, and wanton and intentional falsehood and defamation, would be to inflict upon him a hardship which the law is studious to avoid; to cast an odium on the system of pleading, intended for the furtherance of justice, and to place a man, who speaks only what at the time he believes to be truth, upon a level with the malicious slanderer. We do not, therefore, concur in opinion with the county court, and the judgment must be reversed.

The case of the same appellant vs. William Wolcott differs from that just decided only in this; that in the former case, notice appears to have been given some time before the trial to the plaintiff, of the intention of the defendant to offer in mitigation of damages the evidence proposed ; which we think of no consequence, and was not necessary to have been given. And also that in this case, the defendant’s counsel was stopt in limine by the court, and not permitted to give any evidence of probable cause of suspicion at the time of speaking the words charged, in *420mitigation of damages, in which we think the court erred, and should have suffered evidence not amounting to a justification to go to the jury, on the general issue in mitigation of damages ; but not in bar of the action.

THE JUDGMENTS IN BOTH CASES ARE REVERSED, AND PROCEDENDO AWARDED.