Richardson v. Roberts , 23 Ga. 215 ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

As the motion for a new trial, embraces all the grounds in the bill of exceptions, I will proceed at once to the consideration of that.

[1.] The first error complained of is, that the Court allowed the interrogatories of Martha and Margaret Bryan to be read, notwithstanding, the written objections filed thereon by defendant’s counsel that they were leading, illegal and irrelevant. The Court considered the last objection, and holding, that the testimony was pertinent to the «issue, allowed the depositions to be read. The Judge refused to consider the other objections, under the act of February, 1854, (Pam. 49,) which requires all other objections, except those made for irrelevancy “to be taken and determined before the case is submitted to the jury.” As to the relevancy of the testimony, both witnesses prove the charges contained in the declarations, and other slanderous words spoken in reference to the same subject.

We see no error in this assignment.

[2.] The next complaint is, that the Court refused to non-suit the plaintiff after the evidence had closed. This objection as appears from the record, was based upon this idea: that the statute of limitations being pleaded, the plaintiff had failed to prove the speaking of the words, within six months next preceeding the commencement of the suit.

It will be noticed that the plea of justification had been filed. The writ alleged that the words were spoken in December, 1854, and the declaration was filed in February thereafter. Now, the plea admitting the slander as charged in the writ, and the defendant taking upon himself the burden of establishing their truth, he dispensed with any proof to make out the case; and consequently the Court was right in refusing a nonsuit,

[3.] The next complaint is, that the Court ruled out the evidence of the defendant, to the effect that the child of the plaintiff was reputed to be a bastard, and that Nathaniel Griggs was reported to be its father. We know of no case where a criminal charge like this, is allowed to be provea by rumor or reputation. It would be a most dangerous doctrine. The defendant himself propagates a report of this sort in the neighborhood,^and then relies upon the rumor which is indebted to him for its paternity, to justify him in giving utterance to the slander. His accusation must be supported by proof, not by rumor or reputation.

But, I forbear to argue this point. Since this opinion was delivered, a highly esteemed professional friend, who heard it, was kind enough to refer me to the case of Jones vs. Stevens, 5 English Exch. Rep. 62; 11 Price, 282.283, where it was held, that general evidence of the plaintiff’s bad character and ill repute in his business, as a practicing attorney, cannot be admitted, either to contradict the allegation in the declaration, that the plaintiff, during &c., exercised and carried on the business of an attorney with great credit and reputation, with a view to mitigating damages on the general issue, or in support of averments in the defendant’s pleas, pleaded by way of justification, that the plaintiff was a disreputable professor and practitioner in the law. In the case before us, it is proposed for the same objects, to prove a particular neighborhood rumor or reputation, which is much worse.

[4.] The next ground is, that the Court held, that the defendant having filed the plea of justification, he must prove the truth of the charge as spoken, and that proof that the child of Mary Roberts, was a bastard, was not sufficient. The Court remarked that this proof could only be let in for one purpose, and that is to show the character of the plaintiff for want of chastity, and thereby lessen her claim for damages. But that this could only be done by testimony as to her general reputation, and not by proof of a particular fact like this.

All of which we think right.

[5.] The Court instructed the jury, that if the plea of justification is not made out, the filing of it was an aggravation of the slander, such we understand to be the law.

[6.] The sixth assignment is but a repetition of the 4th, and there is this obvious objection to the charge as requested, to-wit: that if the jury believed that plaintiff's child was a bastard, it was proof of bad character, and consequently the plaintiff was not entitled “to recover any thing,” such is not the law.

[7.] We see nothing wrong in the 7th assignment. The Court expounded the rule of evidence correctly.

[8.] It is argued that the verdict is contrary to law, because the words set out in the declaration are not actionable per se ; that there is no colloquium to make them so, and no special damages laid.

We hold, that the words were actionable in themselves, They impute to the plaintiff, the crime of fornication, and that she was living in a state of fornication with Griggs.

[9.] As to the evidence, there was much on¿both sides, quite enough on the part of the plaintiff, to justify the verdict

[10.] As to the excessiveness of the damages, they are small at best; much too small if the charge be false. And Courts can feel but little sympathy for a man who will go about through a neighborhood prating about such matters. It is bad enough in women. But women will talk, for God has made them so. It is ww-manly in a man thus to tattle, and suppose it be true, that this woman was seduced by her step-father, under the advantages which he possessed for that purpose, the compassionate Saviour of the world, who said to one taken in adultery, “go and sin no more,” would have covered her fault with the mantle of his silence. Let his erring, fallible creatures imitate his divine example, otherwise they need not resort to this tribunal to get relie! from the just penalty of their own unpitying persecutions.

Judgment affirmed.