IN SLANDER SUITS, IS EVIDENCE THAT AT THE TIME OF THE SPEAKING THERE WAS CURRENT IN THE COMMUNITY, A REPORT OR BELIEF THAT THE WORDS WERE TRUE, ADMISSIBLE IN MITIGATION OF DAMAGES?

Among the subjects on which the law is confused and conflicting, is that of slander. There is hardly a rule of law, aside from few fundamentals on this subject, in regard to which there are not some cases which are in conflict. One of these questions on which the decided cases are numerous and hopelessly in conflict is the subject of this paper as above stated. To illustrate: If I call a man a thief, and in a suit against me for slander I find myself unable to prove the fact that he is a thief, may I prove to mitigate the damages which the jury are to determine my words have caused, that at the time of speaking them the people generally in the community believed him to be a thief.1 A careful review of the cases and the reasons assigned for the different holdings forces the conclusion that while perhaps the weight of authority, so far as the number of cases is concerned, is slightly against the reception of this evidence, yet the reason and justice of the matter are all in favor of receiving the evidence, simply to mitigate the amount of damages. Of course, it could not be a defense; for if one speaks a falsehood, he should be liable for the damage which it causes, though some one else before him has also circulated the same untruth; but the

theory of the admissibility of this evidence is, that he should not be held liable for any greater damage than that which his utterance of the words has caused.

In discussing this question we must bear in mind that damages are of two kinds, compensatory and punitory, the former being the amount which is adjudged to be sufficient to repair the damage done, and the latter, a sum over and above such actual damage awarded as a punishment to the defendant, when he is shown to have been actuated by malice in fact. It is unnecessary here to discuss the difference between malice in law, which is always presumed from the slander,

A number of the cases holding each position are cited in Townshend on Slander and Libel, § 411, and Lawson's Rights, Remedies and Practice, § 1304.

and malice in fact, or to inquire when punitory damages are awarded and when not. Sufficient for our purpose that these two distinct kinds of damage are awarded and that the theory of the one is to repair the actual damage done, of the other, to punish the defendant for his wantonness in propagating the slander. We will therefore discuss the question, first, whether such evidence should be received to mitigate punitory damages, where the jury are at liberty to award such, and secondly, whether it should be received to mitigate actual damages. Though the cases seem to discuss the question indiscriminately without regard to the two kinds of damages, yet the reasons which apply to each are so entirely different and distinct, that it will be much more satisfactory to discuss the two separately.

First. As to Punitory Damages.-Since they are inflicted as a punishment, the jury should have before them, in order to render a correct judgment, all the facts and circumstances which bear upon the degree of moral turpitude of the defendant. Certainly the moral turpitude of him who, actuated by express malice, repeats to others a story already abroad in the community, and in the mouths of men, is not so great as that of him who, actuated by express malice, fabricates and concocts, and publishes to the community an hitherto unheard of tale of crime, having no foundation whatever for it. It is a wrong for which punishment should be inflicted to circulate the falsehood of another, when done with a malicious purpose. But when this is proved without other proof of its origin, the jury are entitled to infer that the one who is proven to have spoken the words, was the originator of them. This is the rule of the cases. Ought he not then be permitted to prove that, however guilty he may be of the offense of repeating what he has heard, still he is not guilty of the further and greater offense of having maliciously manufactured this damaging story out of the whole cloth? Having conceived for some reason, an ill feeling toward the plaintiff, he has found a story afloat in regard to this plaintiff and without investigating the truth or falsity thereof, he repeats it to another. This is a wrong for which he should be punished. But can any one think for a moment that any jury would mete out to him the same punishment

as they would to the man who, conceiving the same ill will toward the plaintiff, has found that plaintiff the happy possessor of a reputation untarnished by the slightest suspicion of guilt, and has maliciously set about to destroy that reputation, and to that end has invented from no foundation whatever, but entirely from his own imagination, a wilful and malicious story of a crime committed by him, and spread it abroad, throughout the community as a true account of an actual occurrence? Surely there is a wide difference between the moral fault of these two, and the law which aims to do exact justice, nothing less and nothing more, should permit the jury to hear the facts which will show this difference and not compel them to indiscriminately sentence together to the same punishment, the gossipy tale-bearer who repeats what is in the mouths of all, and the infamous villain, who craftily and deliberately manufactures a story which he knows to be false, and thereby blackens and besmirches the reputation of one whom no one ever before suspected of evil. To fail to so distinguish, is to fail to do justice to either.

But on this branch of the case we may go further. Such evidence may do more than mitigate punitory damages; it may completely disprove any ground for them whatever. The foundation of such damages is that there exists malice in fact, over and above the malice implied by law from the slander. First, then, we must remember that after the slander is proven, the plaintiff, solely for the purpose of proving this malice in fact, and thus laying a foundation for punitory damages, may show that the slander has been repeated by him at other times and to other persons, or that he has uttered other and distinct slanders in regard to the plaintiff. Now, when such evidence is in, and an appearance of malice is thus raised up, it seems only fair and just, that the defendant should be permitted to rebut this appearance of malice by showing that he was not the author of the slander, but had heard it from his neighbor and had repeated it on the street as a matter of news of which he had just learned. Such evidence would strongly tend to disprove any malice on his part, and would show that he had simply repeated what he had heard, without investigating the truth, as he ought first to have done. For this he should be made to

pay for the damage done, as for any negligent act resulting in damage, but on such proof as this the jury would be entirely justified in finding that there was no express malice, and, therefore, restricting their verdict to the actual damage proved, while without such proof the conclusion might be irresistible, since the story now shown to be plainly false would be presumed to have started with him, that the author must have been moved by express malice of the worst kind to ever start such a story. The very nature of the charge, taken in connection with the proof of its falsity, may be such that no other conclusion can be possible than that the author of it must have propagated the story maliciously. Such being the fact, in order to rebut this presumption of malice, evidence ought to be received that the defendant did not originate the story, but only repeated what another told him. This is forcibly shown by an illustration in the opinion of Pennington J., in Cook v. Barcley.2 Suppose a neighbor, the person for instance, while at my house should gravely inform me that another neighbor has been detected in some scandalous crime; soon after, others of good credit should drop in and relate the same story, and still later I should meet still another person, and while speaking of the news of the day, I should tell him of this story I had heard without relating to him from whom I had learned the fact. If afterward it should turn out that my informers and myself had all been made the cat's paws of another's malice, and I should be sued for slander, I could not set up these facts as a defense, and rightly so, for I ought to have ascertained the truth myself before giving the report further circulation, since my repeating the story might give it additional credence; but every principle of reason and justice would require that the jury be permitted to consider all the facts and circumstances concerning the utterance by me, so that after they had determined on the actual damage caused thereby, they might consider all the facts above related, in determining whether they shall award against me, in addition, punitory damages, as a punishment for the willful malice which they might justly conclude must have actuated him, who has out of whole

21 Penn. (N. J.), 169, s. c., 2 Am. Dec. 343, 352.

cloth invented and published so scandalous a tale.

It seems quite plain, therefore, that so far as punitory damages are concerned, the jury ought to be permitted to consider such evidence, in determining whether they will award such damages at all, and also if they do award them, to assist in deciding what amount of such damages ought in justice to be given.

Second. As to Compensatory Damages. The theory of these damages is, that they shall be of such an amount as will repair or make whole the actual injury inflicted by the publication of the words; hence such evidence should be received as has a direct

bearing upon the extent of such injury. As to punitory damages the sole inquiry was as to the intent, the quo animo of the defendant, regardless of the extent of the injury; as to compensatory damages, the inquiry must be as the extent of the injury regardless of the intention of the defendant, except so far as the intent, manifested to those hearing the words, may affect the extent of the injury. No evidence should, therefore, be received to mitigate compensatcry damages, which only shows that the words were spoken in good faith without intent to injure, for that does not lessen the injury; but only such evidence should be received as tends to show that the actual damage caused is less than that which would be ordinarily presumed to follow from the speaking of the words charged. The purpose of evidence in mitigation of compensatory damages is not, because of some merit of the defendant, or demerit of the plaintiff, to reduce the amount of recovery below the amount of actual damages suffered, but only to reduce it to that amount. With this understanding then, does the evidence we are here discussing tend to show that the actual injury inflicted is in fact less than what the jury would ordinarily

assume it to be, without such evidence? A moment's reflection shows that such would be the effect of the evidence. If at the time the words were spoken, the community generally had already heard this same story, and the plaintiff's reputation in that regard had already become fixed, it is very plain that the damage caused by this latter repetition of the same old story must be less than if that speaking were the one which had in fact started

the story and given birth to this infamy which had so damaged the plaintiff's reputation. The distinction is, that at the time of the speaking relied upon, the plaintiff did not possess an untarnished reputation in that regard, but some one else before that had already injured it, so that at the time the defendant spoke the words, plaintiff did not have as valuable a reputation to lose as he would have had if these stories had not been

already circulated abroad in the community;

and for that reason the words of the defendant could not have caused so great an injury to his character as it then was, as they would have done, if his reputation at the time had been beyond suspicion. The defendant has injured the reputation of the plaintiff just so far as his repetition of the slander has given it greater credence, and has thus sunk the plaintiff into deeper infamy. For this he should pay; but since he did not originate the slander, he is not responsible for the bad reputation of the plaintiff before he himself spoke ill of him, and therefore, should not be required to repair that damage also. For redress for the bad reputation at the time of the defendant's remark the plaintiff should look to the one who has caused his reputation to be bad at that time; that is, to the one who originated the slander. The two injuries are entirely separate and distinct. The parties are different; they had nothing in common, they are not joint wrong-doers; they could not be joined in a suit together, but each would have to be sued separately. What justice is there then in compelling one to pay for the injury of both? It is as if one man should assault me and black one eye, and the next day another man should assault me and black the other eye. Plainly, I could recover of each only for the damage which he has done, not for that of both. The same rule should apply in slander. For the damaged reputation up to the time of the utterance by the defendant, the plaintiff should look alone to the author of the slander. He should be permitted to recover of the defendant, only for the increase of ill-repute which defendant's words have brought to him by reason of the fact that his repetition of them has given them greater credence and wider circulation. To refuse such evidence is to

place on the same footing one who in the presence of others reads aloud a scandalous

the

article in a newspaper, with the villainous conspirator who has manufactured dastardly falsehood. As is well suggested in a Michigan case: "The law is too discriminating in meting out justice to lay itself open to the charge of so gross a blunder." But suppose for a moment we accept the contrary doctrine, that no man should be permitted to escape a full liability for uttering slanderous words, by pleading that he only repeated the words of another, and what an anomaly we have! Suppose one man start a slanderous story, and it becomes general town talk, and is discussed and passes from mouth to mouth as any item of news. There may be fifty responsible persons who have spoken it. Now, on this theory, each one of these may be sued separately and a judgment collected from each for the full amount of damage done by the whole slander, as if he were the author, and thus the plaintiff recover fifty times the amount of damage done him. Nay, more, suppose a judgment has been collected from the author for the full damage done by the original utterance, and all its repetitions, as is justly allowed, when the originator of a slander is sued, still these others who have only repeated this story, cannot set up this judgment as a bar, but must each in his turn pay the whole bill over again. Surely this is rendering compensatory judgment with a vengeance! We may well hesitate long before accepting as sound law, any theory which would lead to such an absurdity. On this theory any worthless vagabond might cause stories to be put in circulation regarding himself, then stealthily lie in wait for some responsible citizen who might inadvertently speak of this report, and thus mulct him in a large amount of damages. It is indeed fortunate that so many courts have entered their determined protest against this line of decisions.

The objections to the reception of such evidence seem to be so vague and uncertain, that it is hard to frame any answer to them. For the most part they seem to be that this evidence is in the nature of a justification and therefore inadmissible under a general denial, and also that it permits the slanderer to secretly disparage the reputation of a citizen, and then plead this damaged reputation as a partial defense when sued for the slander.

Farr v. Rasco, 9 Mich. 353.

In regard to the latter objection, it would seem sufficient to say that a thorough investigation of the facts of the case, such as ought to be given to every case of that kind, would be morally certain to circumvent any such cunningly laid plan, and besides convincing the jury of facts sufficient to justify a verdict for the full damage for all the injury done, would also furnish a sound basis for a very liberal allowance of punitory damages. One or two salutary verdicts of this kind in a community would be a far better remedy for any such anticipated abuses than would be a course of judicial decision which would open the door to fifty wrongs in trying to head off one, and that one only anticipated. As to the objection that this evidence is in the nature of a justification, and hence, inadmissible unless a justification is pleaded, it need only be said that while it may be in the nature of a justification, yet it could not be offered under a plea of justification, since on that issue it would be only hearsay. It is not a justification, nor is it offered as such, and if there should be any danger of the jury considering it as such, the court should charge them that this evidence is to be considered only on the question of damages. It is a matter of daily occurrence for evidence to be received on one point, which is entirely inadmissible on another issue in the case, and for the court, in his charge, to instruct the jury against its improper use.

The rule is well settled that in libel suits, evidence that the article was copied from another paper is admissible in mitigation of damages. It is difficult to see why any distinction should be made in this respect between cases of libel and cases of slander.

Seattle, Wash.

CLAIRE B. BIRD.

4 Hewett v. Pioneer Press. Co., 23 Minn. 178; s. C., 23 Am. Rep. 680; Eviston v. Cramer, 54 Wis. 220.

MUNICIPAL CORPORATION-POLICE POWERORDINANCES.

CITY OF RICHMOND V. DUDLEY.

Supreme Court of Indiana, September 17, 1891.

A city ordinance regulating the storage of inflammable and explosive oils and requiring the owner to secure the permission of the common council, to be granted or refused in their discretion, which permis gion shall at all times be subject to revocation, at the

option of the council, is void as vesting the council with a power of arbitrary discrimination between citizens.

MILLER, J.: This was an action brought before the mayor of the city of Richmond against the appellee for the violation of a city ordinance regulating the storing and keeping of petroleum and other inflammable oils within the corporate limits. Judgment was rendered against the appellee before the mayor, and the cause appealed to the Wayne circuit court. In that court demurrers were sustained to the several paragraphs of complaint, and judgment on the demurrer rendered against the appellant. The only question before us is as to the validity of the ordinance. The sections of the ordinance to which the objections are made as follows: "Section 1. Be it ordained by the common council of the city of Richmond that it shall be unlawful for any person to keep or store any petroleum, naphtha, benzine, gasoline, coal oil, or any inflammable or explosive oils, within the corporate limits of the city of Richmond, in quantities greater than five barrels at a time, except as hereinafter provided. Sec. 2. Any person desiring to keep or store any of the oils or products mentioned in the first section of this ordinance within the corporate limits of the city, in quantities greater than five barrels at a time, shall present a written petition to the common council, at a regular meeting thereof, setting forth an exact description of the location, premises, and buildings on and in which it is proposed to keep and store such oils and products, and the manner and kind of vessels in which the same are to be kept, the kind of oils, and the purpose for which they are to be kept. Sec. 3. Upon the presentation of the petition, as provided in section two of this ordinance, the common council may, if the location and buildings described in said petition, and the purpose and keeping of such oils and products, are deemed suitable and proper, and that the person presenting such petition is a proper person, grant such permission to the person presenting such petition, to keep and store such oils and products on the premises, and in the manner set forth in the petition, or in the manner which the council may direct, in quantities greater than five barrels at a time, which permission so granted may be revoked at any time at the option of the council; and the rights and privileges to be exercised by the person receiving such permission shall not be assignable or transferable by the person receiving the same to any other person directly or indirectly, and any attempt so to do shall be deemed a revocation of all rights and privileges on the part of the person making the attempt." Two objections are urged against the validity of this ordinance: (1) That it gives to the council the power to arbitrarily discriminate between citizens by giving the permission to some and withholding it from others under similar conditions; and because it specifies no terms or conditions to be observed in the keeping or storing of such oils which could be complied with by all

citizens alike. (2) That the ordinance is unreasonable, and is an undue restraint upon lawful trade and business.

The subject covered by the ordinance in question is clearly within the police power conferred by the charter upon the municipality. Section 3155, Rev. St. 1881, provides that the common council of a city shall have power to make by-laws and ordinances not inconsistent with the law of the State, and necessary to carry out the objects of the corporation. The danger to be apprehended from the storing of large quantities of inflammable or explosive substances in large quantities within the limits of a city to life and property is so great as to invite legislative control of the same by the city government. The principal question in this case is whether or not the ordinance in question is a valid exercise of that power. It will be observed that this ordinance does not establish any general rule for the storage of substances proposed to be regulated; but reserves to itself, at regular meetings, the right to grant or refuse permission to keep and store such oils, dependent upon whether it at such time deems the location and buildings suitable for such purpose, and the person presenting the petition "a proper person." It further provides that the permission, when granted, 66 may be revoked at any time, at the option of the council." Language better calculated to enable the common council to arbitrarily control the business, without any fixed or known rules, cannot well be imagined. The business of keeping, storing, and dealing in such oils is a legitimate business, and every citizen has an inherent right to engage in the business upon equal terms with any other citizen. In the case of Bills v. City of Goshen, 117 Ind. 221, 20 N. E. Rep. 115, an ordinance of the city requiring a license for carrying on the business of roller skating, and providing that such license should be issued upon the payment into the city treasury of such sum of money as the mayor or common council shall determine in each particular case," was held invalid; the objection being that a discretion was lodged in the mayor or common council in fixing the fee to be charged. In the opinion this language is quoted with approval from Horr & Bemis on Municipal Police Ordinances: "The ordinance itself should specify every condition of the license, and the officer should be merely intrusted with the duty of issuing licenses." In Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, an ordinance of the city of San Francisco, prohibiting the carrying on of laundries without a permit from the board of supervisors, except in buildings constructed of stone, was held invalid. The court say: "It does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes, to which all similarly situated may conform. It allows, with restriction, the use for such purposes of buildings of brick or stone; but as to wooden buildings-constituting nearly all those in previous use-it ivides the owners or occupiers into two classes, not having respect to