Tibbs v. Brown , 2 Grant 39 ( 1853 )

The opinion of the court was delivered September 27,1853, by

Lowrie, J.

— One wife slandered another, and the defence below was, that the husband, plaintiff, originated the slander against his own wife, and also, that he fraudulently led the defendant’s wife into the' publication of it; and there are two pleas to this effect, besides a general traverse. Under such circumstances, there should have been a verdict on each of these issues. Then, probably, the plaintiff would have had a verdict for damages on the general issue, and the special ones, would have been found in favor of the defendant. Then who would have had the judgment ? The plaintiff, of course, if the facts pleaded specially, did not amount to a defence, and the defendant, if they did; and at all events, we could have decided this case without a new trial; or if the plaintiff considered the special pleas insufficient as a defence, they ought to have demurred to them. It was quite unartistic, to exclude as a defence, the matters pleaded as a defence, for they were the issue of fact, which the parties had submitted to the jury to be decided.

The defendant did not attack the character of the plaintiff’s wife, and therefore it was error to admit evidence to sustain it.

It was equally erroneous, to admit evidence of the bad character of the plaintiff’s husband, in order to show that the defendant ought not to have relied or acted on his slanders of his own wife; and the principle of this question involves the points submitted by the defendant’s counsel as instructions to the jury. It is impossible to allow that one can join in the commission of an injury, or lead others to do it, and then be a party plaintiff, in claiming compensation for it, from those whom he has misled. If Brown did so, he can maintain no action, and without him, his wife cannot sue, and the law cannot regard the husband as a mere name, in matters where the wife is concerned.

The court ought to have proceeded upon the principle that, where an injury arises from mutual fault, there can be no recovery ; and to have affirmed the defendant’s second and third points.

This is hard indeed, but it is a consequence of the unworthy connection which this plaintiff’s wife has formed. So long as that relation continues, we cannot relieve her from its natural results. It may be possible, that the more the evils incident to the marriage relation are attempted to be cured by law, the fewer will be its virtues and blessings.

It is divested of its noblest characteristics, when the trustfulness and mutual reliance of husband and wife are invaded, and their interests and lot are divided by law. It is the central relation of society, most deeply religious in its character, and human legislation ought always to approach it with cautious reverence.

It could add nothing to its sacred character or to its harmony, to allow a wife to recover damages for an injury, occasioned in part, by her own husband. The Act of 1848 has no influence on the case.

Judgment reversed, and new trial awarded.

Black, C. J., and Lewis, J., dissented.