SLANDER.

[Licking Circuit Court,

March Term, 1898.]

Adams, Douglass and Smyser, JJ.

#### Calvin Hilbrant v. William N. Simmons.

1. What Words are Slanderous per se.

In an action for slander wherein it is alleged: “In place of trying to track around here you had better been to home tracking the man that burned your house and you would track him in your own door. You know you burned it. You took the money and built a barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money and had taken the insurance money and built his barn; such words are action able *perse.*

2. What may be Shown under a General Denial.

The defendant in view of mitigating damages may give evidence of a general report iu circulation prior to the publication complained of that the plaintiff was guilty of the charge then imputed to him. This is relevant only to rebut the presumption of malice and thereby mitigate damages, and the fact that it tends to prove the truth of the charge is no ground for its exclusion

Douglass, J.

William N. Simmons, the plaintiff below, brought an action against Calvin Hilbrant alleging that the defendant slandered and defamed his character by speaking certain words set out in his petition; and prays damages in the sum of $20,000. The defendant denies the speaking of the words and denies malice. The case was tried to the jury and resulted in a verdict of $800. in favor of the plaintiff. Error is prosecuted to this court, and there are five assignments of error, but the ones relied upon in argument are : 1. That the petition is insufficient; that the words are not slanderous *peí se;*that appropriate allegations and proof could only make them so. 2. That the verdict and judgment is against the weight of the evidence. 3. That the damages are excessive. 4. Error in ruling out the deposition- of one Howell, this deposition strongly tending to prove the truth of the charge.

First addressing ourselves to the claim that the petition is insufficient in that the words stated are not slanderous *perse,*and only become so by means of allegations of extraneous facts. The petition, omitting formal parts, is : “In place of trying to track around here, you (meaning the plaintiff) “had better been to home tracking the man that burned your house and you would track him in your own door. You (meaning the plaintiff) “know you burnt it” (meaning plaintiff’s house.) “You” (meaning the plaintiff) “took the money and built your barn with it.” Meaning tnereby that the plaintiff had burned his own house to *567get the insurance money, and had taken the insurance money and built his barn.

The first question presented is: Does this petition state a cause of action ? Some of the questions here presented, namely this first one, is one of cons'derable difficulty, one in which the court is not in common agreement. A majority of the court is of opinion that the petition does state a cause of action, and that the innuendo pointing the meaning of the words is not overdrawn, and that it is the only logical deduction therefrom.

It would be an endless task and a thankless one to attempt to reconcile all the cases, as to the real foundation of slander. Some of the earlier cases hold that the real foundation of slander was jeopardy of punishment, and others hold: Injury to the reputation of the person. Words, to be actionable, must come within one of three classes : (as set out in the 27 O. S., 328): “The words must import a charge of an indictable offense, involving moral turpitude or imfamous punishment(and within that class this case must fall). 2. “Impute some offensive or contagious disease -calculated to deprive the person of society; or 3. Tend to injure him in his trade or occupation.” Within these three classes, we have slander.

I will make reference to the 27 O. S., 326, the syllabus of which is: “Words spoken, charging a man with *sodomy,*are not actionable without alleging special damage; such an act not having been made a crime or-offense indictable and punishable by law.” The court, on page 329, enters upon this discussion : (reviewing the 19 Ohio St., 432) “the first rule is cited by the court in these words : “The general current of decisions warrants us in saying that to render words actionable *per se,*on the ground that they impute criminality to the plaintiff, they must be — 1. Such as charge him with an indictable offense; and 2. The offense charged must involve a high degree of moral turpitude, or subject the party to infamous punishment” and to make this rule especially emphatic, the court adds, quoting from Starkie: “No charge, however foul, will be actionable without special damages, unless it be punishable in the temporal courts of criminal jurisdiction.”

On a review of the 17 Ohio St., 241, the court makes this observation : “The only innovation upon this common law rule which has hitherto been made in this state, is in regard to the slander of a female; but this exception has never been extended to the other sex where the words are of a similar character. And we neither feel disposed nor authorized to extend the innovation.” Wright’s Report, 40, is one of the earliest cases in regard to this innovation. It is there said : “To charge a man with adultery is not actionable, though to charge a woman is.” “This court have gone no further. Going that far is conceded to be an innovation upon the common law rule. We are unwilling to carry the exception further, and have s.o decided heretofore.”

Then a reference is made to the 15 Ohio, 319, which case, they say, stands alone. The charge in the case in 17 O. S., 241, was one of a serious character, burglary, and was between partners; and because a partner could not be indicted for stealing from himself, they held that there was no slander, *per se,*in what he said.

Hollingsworth v. Shaw, 19 O. S., 432, was a charge of desertion against a soldier. I will read what the court say : “This charge, if true, subjected the party to infamous punishment, and even death by court martial, as well as involved the highest degree of disgrace and infamy, *568and yet, because it was not an indictable offense, the right of action was denied.” “So to say of a person that he had negro blood in his veins (Wright’s Report 40), was more effective than the small-pox in excluding him from society, yet it was not actionable.”

I simply cite these to show how rigorously the rule has been held and followed that words, to be actionable, must support a charge of an indictable offense involving moral turpitude or infamous punishment. The substance of the statute is that any person found guilty of this offense viz., burning his property to secure the insurance, shall be imprisoned in the penitentiary not more than twenty years. As preliminary, I desire first to cite sec. 5093: “In an action for a libel or slander'it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; if the allegation be denied, the plaintiff must prove the facts showing that the defamatory matter was published or spoken of him ; and in such action it shall not be necessary to set out any obscene word, but it shall be sufficient to state its substance.”

Referring to Kinkead, Vol. 1, sec. 754, we have a construction of this statute as it refers to the colloquium and innuendo, which we think important: “Codes of other states provide in so many words that it is not necessary to state extrinsic facts to show the application of the defamatory matter to the plaintiff. These provisions have caused confusion upon the question of the necessity and use of the innuendo and colloquium, as well as the necessity of averring extrinsic facts. It seems to be considered by some authorities that the code dispenses with the necessity of pleading extrinsic facts.” “But the innuendo must be used where the publication does not appear on its face to be of a defamatory character, and only becomes so by reference to extrinsic facts, in which case the existence of those facts must be alleged to show a libelous meaning. But where the words themselves tend to injure the reputation, the allegation of extrinsic facts is not necessary. The office of an innuendo is to direct attention to the charge made.” Then it is stated, and truly, that it does not enlarge or broaden the charge, but points the meaning. “The provisions of the code heretofore referred to were clearly intended to dispense with the necessity of the colloquium, as it provides that it must be stated that the words were spoken of the plaintiff. In any event, if it be denied that the words were spoken of and concerning the plaintiff, they must be established. It is, however, dispensed with only when it is unnecessary to show that the defamatory words applied to the plaintiff. The averments required in common-law pleading to show the meaning of the -words must still be made. “That is the view of this text writer: “The averments required in common-law pleading to show the meaning of the words must still be made.” This is pointed here by the averment: “took the money and built your barn with it.” Meaning thereby that the plaintiff had burned his own house to get the insurance money, and had taken the insurance money and built his barn.”

We have examined a large number Of authorities, and, recognize the force of the position assumed. Is the innuendo in this case — “meaning thereby that the plaintiff had burned his own house to get the insurance money, and had taken the insurance money and built his barn,”— justified by what is stated? If it is not, it counts for nothing; it cannot enlarge or broaden, but it points the meaning.

In 16 Am. St., 422, the language was not choice, but it was: She is ornrier than two hells, and I can provept, “meaning to charge her *569with being a whore.” That was all that was stated; the innuendo was: “meaning to charge her with being a whore.” The court in discussing that says: “It is charged in the petition that in using the expression defendant meant to .charge plaintiff with being a whore. The words themselves do not signify that. Without explanation, we regard them of very uncertain meaning.” There 'was no evidence admitted except as to how the hearers understood that. Then they enter into a discussion here, saying that lexicographers have not attempted to define the word “ ornery ” ; that they have not given it any authoritative recognition; that it is a sort of provincialism; and about the most that can be said of it is that it was intended to cast some bad aspersion upon somebody, and so on. But alter that discussion the court say : “ In such cases the expressions are ambiguous. They may have one meaning or another, and the intent and understanding must be established by proof.” “ The defendant asked the court to give to the jury the following instruction, which was refused: The court instructs the jury that to say of a woman or girl that she is ornrier than two hells ’ will not warrant- the innuendo, meaning, or construction that she is a prostitute, although you may find, from the evidence, that the defendant did speak of and concerning the plaintiff the above words. Then, upon that branch of the case, you are instructed that the plaintiff cannot recover, and you will find for the defendant.’ Of this refusal the defendant complains. The instruction merely presents a question as to the sufficiency of the pleading. The point urged was as manifest on the face of the petition before answer as after the taking of the testimony. If the objection could have been taken by motion, or demurrer to the petition, and was not, and the party answered and proceeded to trial, it was a waiver of the objection, arid cannot afterwards be raised by an instruction to the jury.”

The court decides this : “ Where a petition in slander charges that defendant said of and concerning plaintiff that she is ornrier than two hells’, meaning to charge her with being a whore, the word ‘ornrier ’ being of doubtful and uncertain meaning, the intent and meaning of its use as understood by those who heard it may be established by proof, but the testimony of witnesses who did not hear that word used, but heard other words not slanderous in character, is inadmissible to prove their understanding of the word charged. ” The court there holds that a petition stating those words as spoken, and then the innuendo; meaning thereby that she was a whore, is sufficient to make a good petition, and justify proof as to the understanding of the parties who heard the words. In analogy to this, how stands our case? “You know you burnt it; you took the money and built your barn with it, ” if a hundred persons heard that stated, no one could understand it to mean anything else than that the property was insured, and that he got the money from the insurance company and built a barn. ’ There is no other logical construction. That being the only logical deduction from the words spoken, it is a proper innuendo, and makes a case, as we view it.

22 Am. St., 126, is an instructive case, because there are so many specific averments, and then an innuendo that we think is a good deal more strained than in this case, a different logical deduction could have been made from the words charged. The- defamatory words relied upon are : ‘ ‘ She keeps a common open house (meaning that plaintiff kept a common open house of ill-fame). She is nothing but a whore¡ *570anyway (meaning that the plaintiff was a common prostitute, and kept a house of ill-fame(This is a Vermont case.) Our view is that keeping a common open house and charging her with being a whore anyway, that while the innuendo might point with some logic, to the fact that she kept a house of ill-fame, it is not as conclusive as the case at bar ; because another logical deduction could be made than the one pointed by the innuendo. ■ The court say: “ The question is not, as assumed by the defendant, whether this is the only natural meaning of the words ‘ common open house ’. In determining the meaning of this particular phrase, the language used is to be taken together, and the question then is, What might the person to whom the words were spoken have properly taken them to mean?” If that is the question, then this case at bar is safe; because what other thing could the person to whom the words were spoken have taken them to mean in the case at bar? Again the court adds ; “Might they not, without other aid, have naturally conveyed the meaning assigned by the innuendo ? ” That gives us wide latitude in case at bar. “ If so, the words are legally susceptible of the meaning charged, and the count is sufficient after verdict. The charge of keeping a common open house, standing alone, could not support an innuendo that a house of ill-fame was meant, without the aid of special prefatory averments. But when it is said of a woman who in the same connection is declaredto be a prostitute that she keeps a common open house, we think the words are legally susceptible of the meaning here ascribed to them ; and the jury has found by its verdict that they were used by the defendant in that sense.” We think that that case is very much wider and very much more doubtful than the one at bar. This is all I desire to say on this proposition.

An examination of the record satisfies us that the judgment and verdict is not against the weight of the evidence as to the plaintiff’s right to recover some amount at least.

As to the exclusion of the Howell deposition : This was excluded on the ground that it tended to prove the truth of the words spoken under a general denial, and that proof of the truth of the charge was only admissible under a plea of justification. The authorities upon that proposition that are in conflict in this regard are the 5 O. S., 293 and 32 O. S., 604. The syllabus in 5 O. S., 293 is as follows: “Under the plea of the general issue in an action for a libel, it is competent for the defendant, with a view of mitigating damages, to give evidence of a general or common report in circulation prior to the publication complained of, that the plaintiff was guilty of the charge imputed to him ; but such evidence is only competent to rebut the presumption of malice, and not by way of affecting or attacking the character of the plaintiff.

“Under the plea of the general issue in such action, evidence of particular facts or circumstances calculated to have induced mistake, or to have misled the party in the publication of the slander, is competent in mitigation of damages by way of rebutting the presumption of malice, and that, too, whether the evidence tended to prove the truth of the charge or not.”

The opinion in this case, by Judge Bartley, goes to the length of holding that, under the general issue, or general denial, evidence tending to prove the truth of the charge, even if it went so far as to prove its truth to the entire satisfaction of the jury, may be given in evidence, and that the court will take care of it; not that it can defeat a recovery in any instance, but that it can be used simply to mitigate damages down *571to the very edge, — to nominal damages. I will read the conclusion of the opinion in this case. First citing 18 Conn. Rep., 464, then the court proceeds : “It has been said that a defendant could avoid the difficulty of this rule by putting in a plea of justification, and thus introducing his evidence, which, although it might not fully support the plea, would be considered by the jury in mitigation of damages. This would, however, introduce a fallacious principle in pleading. And besides the plea of one defense as a sham to enable the party to give evidence of another and different defense; it would subject the delendant to all the consequences of a repetition of the slander, which would perpetuate the charge upon the public records without proper and justifiable cause. A plea of the truth of the slanderous charge, when made in good faith, if unsustained by the evidence, always tends to aggravate the case and increase the damages. And when the truth of the charge is plead, and spread upon the record wantonly, or unnecessarily and improperly, it entitles the plaintiff to what would amount to exemplary damages according to the circumstances of the case. When, therefore, a party has made the charge under an honest but mistaken belief of its truth, induced by circumstances which came to his knowledge tending to show it to be true, it would be a denial of justice to compel him to incur the consequences of a plea of justification in order to introduce evidence which, although it might not sustain a plea of justification to the satisfaction of the jury, would greatly tend to mitigate the damages by. repelling the presumption of malice.”

“The reason assigned for the rule that the plaintiff must be notified by a plea of justification, before a defendant can introduce' evidence tending to prove the truth of the charge, may be sufficient where the truth of the charge is relied on as *a bar*to the action; but it is wholly unsatisfactory and insufficient to justify a denial of justice, where the purpose of the evidence is to mitigate the damages by disproving malice. The party who institutes an action for slander or libel, always informs himself of the means of the defendant to establish the truth of the charge. In the absence of a plea of justification, evidence tending to prove the truth of the charge, offered for the purpose of repelling proof of malice, even if it went so far as to prove the truth of the charge to the entire satisfaction of the jury, could not prevent the plaintiff from recovering damages to some amount. No plea or notice of matter in mitigation is requisite; and this circumstance ought not to effectuate a denial of justice, when the evidence in mitigation, by way of repelling the proof of malice, tends to prove the truth of the charge.”

In the 32 O. S., 604, the court holds, in the second paragraph of the syllabus: “In an action of slander by a woman, where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her cannot be given in evidence, for any purpose, under the issue made by a general denial.” And holds that wffiere her character for chastity is impugned, specific acts of sexual intercourse cannot be given, but her general reputation for that vice of character can be assailed in mitigation of damages. The court, in the discussion of this case, clearly says, in the face of the authority of the 5 ■ O. S., which has never been overruled, that the absolute truth, under a general denial, cannot be given in evidenc. Since they have given us our choice between these two cases, we think that the 5 O. S. is sustained by the better reasoning; and that it is proper, and ought to be the rule to admit eviden'ce that would go, as is said by Judge Bartley, “to the en*572tire satisfaction of the jury” of the truth of the charge; always, however, circumscribed and limited in ths charge of the court to its purpose, and that its purpose is only mitigation ; and that it cannot defeat a recovery in any event, but only to mitigate the damages by disproving malice.

*Kibler &*Kibler, on behalf of plaintiff in error.

S'. *M. Hunter*and *Fulton & Fulton,*on behalf of defendant in error.

But it is not really necessary to decide this point in this case. This deposition shows that what it contains could not have been known to Hilbrant; and, therefore, restricted as it should and ought to be in mitigation of damages alone, by disproving malice, it could not have any such effect; if limited, it would amount to absolutely nothing; and therefore there was no error in the exclusion of that evidence for that reason. He knew nothing about what was contained in that deposition.

The last questiou is as to whether the damages awarded are excessive. The facts in this case show that these parties were out hunting,— that is, this crowd ; and, among them, was Simmons, the plaintiff. There is evidence tending to show that there was a rabbit shot on the farm of Mr. Hilbrant. Whether that be true or not, they got into a controversy with Hilbrant; a quarrel ensued; Hilbrant’s son was called, and came with some stones in his hands; they had a war of words; a charge was made by one of the parties that Hilbrant had cut the fence of a neighbor; the attention of Simmons was called to that, and he stated that that was true; that they had tracked a man with large feet and pigeon-toed into his lane. And, under this kind of provocation, this retort was made which amounted to this slanderous charge. There is no evidence anywhere in this record that shows that Hilbrant, with malice (which is the real foundation of slander) on any other occasion than when he was in the heat of anger, and near this party who seemed to live in a glass house and threw the first stone and got back this retort that amounted to this slanderous charge, — there is no evidence, I repeat either before or after, that he repeated this slander, or in any way aggravated it; and the Court is of the opinion that the damages given are excessive ; and our judgment is that the plaintiff be required to remit $500. of this judgment of $800, and if this is done, the judgment so reduced will stand ; otherwise, it will be reversed and remanded.

SmysER, J., dissents from first proposition of the syllabus.