#### Isaac Shute *versus*William Barrett. Lydia Oakes *versus*Same.

In an action for slander a new trial will not be granted on the ground of excessive damages, unless they are so enormous as to satisfy the court that the jury have been actuated by passion or some undue influence.

In an action for slander, in charging the plaintiff with adultery, where the plaintiff was superintendent of an almshouse, and the defendant a man of property, and the words were spoken at a town meeting, on a debate relative to the appointment of a new superintendent, and the verdict was for 707 dollars, the Court refused to grant a new trial on the ground of excessive damages.

In an action against the same defendant, by an unmarried female, who was an assistant in the almshouse, for the same slander, where the verdict was for 591 dollars damages, a new trial on the ground of excessive damages was refused.

The case of *Shute*v. *Barrett*was an action on the case for slander. The words complained of charged the plaintiff with adultery, fornication, open and gross lewdness, and lewd and lascivious association and cohabitation with an unmarried woman.

The case was tried on the general issue, before *Morton*J., and the following facts appeared in evidence. The plaintiff was a married man, but had separated and lived apart from his wife. He had been employed by the overseers of the poor of Malden for four years to take charge of the almshouse. A female named Lydia Oakes, the plaintiff in the other action, was employed there during the same time. In March, 1825, at a town meeting, in a debate relative to the appointment of a new superintendent of the almshouse, the words for which this action is brought were spoken; they amounted to a charge against the plaintiff and Lydia Oakes of living in a state cf illicit intercourse.

*87Evidence which was introduced in relation to the plaintiff’s character showed that he was a man of small property, that before he was appointed superintendent some of his own family had been assisted by the town, that he was by trade a shoemaker, that until he received this appointment his character as an honest man and a man of correct habits was perfectly fair and unimpeached, except that reports unfavorable to his conduct in relation to Lydia Oakes had got into circulation, but that he had separated from his wife, whose mind was at times deranged.

Sixteen or eighteen witnesses on the part of the defendant, stated that reports unfavorable to the chastity of the plaintiff and Lydia Oakes had been prevalent since they had been employed to superintend the almshouse ; but none of them had any personal knowledge of any illicit intercourse. The witnesses stated that these reports Were believed by some and disbelieved by others, and several witnesses stated that these reports did not generally circulate till about the time of the town meeting. Several witnesses also stated that they had seen the plaintiff and Miss Oakes together at several public places, at Bunker Hill, at Harvard College commencement, and at a muster, and that they walked arm in arm.

The defendant was reputed to be a man of large property.

One of the overseers testified, that a short time before the town meeting, he informed the defendant that he had investigated the report that Lydia Oakes had been found in bed with the plaintiff; that the woman who had circulated it stated that Shute slept with one of his children, that he got up very early and went to Marblehead, that after he had gone the child cried a good while, and that then Miss Oakes got up and went and lay down on the bed with the child, and that she went into tht room, and thought she would have some sport, and said she founn Mist Oakes in Shute’s bed, and that he, the witness, was satisfied with the explanation ; to which the defendant said that he was satisfied too, if that was the case.

The j ry found a verdict for the plaintiff, and assessed damages at 707 dollars 50 cents. The defendant moved for a new trial on the ground that the damages were excessive.

The case of *Oakes*v. *Barrett,*was an action for "he same *88words. The action was tried before *Morton*J. The evidence introduced was substantially the same as that in *Shute*v. Barrett, with the following additional evidence.

*Oct. 16th*

The plaintiff was an unmarried woman, of perfectly fair character, but without property.

Henry Gardner, a witness for the defendant, testified, that three or four years ago he had a conversation with the plaintiff, m which she inquired of him how he knew that she and Shute lodged together, to which he replied that he did not know it, but that he had heard such a report; that she became very angry and vowed, that if her character was gone, she would stay and see it out; that he then told her that he had heard that she had sent word to Mrs. Shute that she went whortleberrying with her husband ; that the plaintiff asked what harm there was in that.

Mrs. Shute testified, that the plaintiff asked her if it was not impudent to send word to her not to go blueberrying with Shute ; that the plaintiff said that she could walk with him when she pleased, and could have him for all his wife could do, and would have him if she pleased ; and that the plaintiff seemed very angry when she said this.

The jury returned a verdict for the plaintiff, and assessed damages at 591 dollars 67 cents.

The defendant moved for a new trial, on the ground that the damages were excessive.

*Hoar,*for the defendant,

argued that under the circumstances of these cases the damages were enormous. The Court in examining this question must consider the degree of malice, the suffering occasioned by the slander, and the situation of the parties as to properly. The verdicts in the two cases, amount ing to nearly 1300 dollars, ought to be considered together, as both were recovered for the same words. It is very clear that in these cases the jury must have *chalked ;*a very unfair way of fixing damages. The story was in general circulation before the words were spoken, and neither of the plaintiffs has suffered in consequence of their having been spoken.- The language and conduct of Oakes show that she has little delicacy or refinement. Her feelings could not have suffered much, and she is certainly not entitled to very heavy damages. The *89amount of the verdict -in this case is probably more than she could ever be worth.

*D. A. Simmons,*for the plaintiffs,

said the cases ought to be considered separately. The circumstances showed express malice on the part of the defendant; the jury have determined the question. The damages are not unreasonable, and the Court will nsver interfere in a case of this kind unless they are flagrant and outrageous. He cited *Gilbert*v. *Burtenshaw,*Cowp. 230 ; *Duberly*v. Gunning, 4 T. R. 651 ; *Tillotson*v. Cheetham, 2 Johns. R. 63 ; *Coleman*v. *Soutlmick,*9 Johns. R. 45 ; *Southwick*v. *Stevens,*10 Johns. R. 443 ; *Coffin v. Coffin,*4 Mass. R. 41 ; *Commonwealth*v. *Sessions of Norfolk,*5 Mass. R. 435 ; *Jackson*v. *Stetson,*15 Mass. R. 57 ; *Clark v. Binney,*2 Pick. 113 ; [2nd ed. 121, note 1, and cases there cited ;] *Bodwell*v. *Osgood,*3 Pick. 379 ; [2nd ed. 385, note 2, and cases there cited.] Two juries in these cases having found verdicts for nearly the same amounts, the Court will not easily be induced to set them aside. 11 Mod. R. 1.

At a subsequent day in this term the opinion of the Court was read, as drawn up by

Parker C. J.

In this case *(Shute*v. *Barrett)*the only ground on which the motion for a new trial rests, is, that the damages are excessive.

Cases of this nature are the least satisfactory of any that < an come before a court of law, because it has not been found that any general rule can be applied, by which the merits can be tested. So much depends upon the particular circumstances of each case, upon the relative situation of the parties, upon the degree of malice on the one side and injury on the other, resulting rather from the general impression made at the trial from the whole evidence, the character and manner of the witnesses, and a variety of other circumstances, that the law has wisely, if not necessarily, left this question of damages to the sole control of the jury, which is supposed to be composed of men best qualified to estimate the compensation suitable for this kind of injury, with one check only, *viz.*that if they should manifestly appear to have submitted to the influence of passion, to have acted under a mistake, or to have *90been partial or corrupt, the Court will set aside the veidict Order t0 obtain a fair trial.1

Now it is obvious that this is a difficult point for a court to settle, when the only evidence from which they are to infer the fact which vitiates the verdict, is the amount of money given in damages ; for whether the particular sum given is extravagant or not, must depend in a great measure upon the very circumstances which have been laid before the jury, and are presumed to be the grounds and cause of their verdict. So that for tire court to determine that the sum given is extravagant, is to rejudge the cause upon the facts, thus taking upon themselves a jurisdiction which belongs only to the jury. And this must be the reason why so many expressions apparantly loose and indefinite have fallen from courts and judges on motions for new trials for such causes ; such as that the damages must be “ outrageous,” — “ must strike all mankind so, at first blush,” — “must furnish evidence of gross misconduct on the part of the jury,”— and even induced Lord *Kenyon*to say in one case similar in many respects to slander, in which he thought one shilling enough, but the jury gave *£5000,*that “he had not the courage to set aside the verdict.”

It .is impossible to extract any rule from the numerous decisions and *dicta*which are so often cited as to become trite, except that any judge to whom the question is put whether the verdict shall stand or not, must be satisfied in his own mind that the rule of fair compensation has been departed from ; that passion, not reason, has decided, or that some undue influence has swayed the minds of the jury. And this conclusion they can arrive at only by revising the facts in the case, under the presumption in favor of the jury which the law will in all cases imply.

In the case before us the slander was of a gross nature. It was published on an occasion most likely to do injury. It was intended to do injury, for the object was to displace the plaintiff from a trust by which he gained his living, and in the execution of which good moral conduct was essential. It was *91uftered after information given, which, if not sufficient to remove all suspicions from the defendant’s mind, ought to have produced caution, and subjects him to the charge of wilful perseverance in wrong ; under circumstances too which would justify the opinion that he did not believe what he declared. The defendant too is a man of substance and influence. His public declaration of a fact would have weight; so that more humble retailers of slander would be willing to rest upon him as authority. The plaintiff, on the other hand, was in a humble though highly responsible situation of trust and confidence, having nothing but his good character to secure him in his place. The defendant seemed willing to take the risk of the consequences. When warned at the very time of making his denunciations, he persisted in them to the very last. The evidence unquestionably shows malice, and that in a high degree, and the place and circumstances tended to aggravate the mischief. Without doubt, had the defendant merely exercised the right of a citizen to object to the appointment of a town agent on the ground that the candidate was of immoral character or conduct, he honestly believing the imputation true, he would have been entitled to consideration in damages, on the ground that nothing but legal malice existed ; as a member of the legislature, counsel at the bar, or other persons acting in the course of public duty, would be, if the subject of debate made it necessary to discuss private character and the purposes and views of the speaker were just and honest, intending only to communicate necessary information. But if such occasions are seized to traduce, or if the imputations made are false, and known to be so, or if the party making them has good reason to believe them untrue, or upon being told they are so will persist in his assertions, the slander is of the worst kind, and is accompanied with no palliating circumstances.

In this state of things it is impossible for us to say that 700 dollars is an “ outrageous sum,” or that the jury must have been “ influenced by passion or prejudice,” or that they were “ corrupt,” or that all mankind “ would be struck at first blush with the enormity of the sum.” On the contrary, the presumption is strong, that on another trial, as great if not greater damages would be given. Much of the force of the argu*92ment on the part of the defendant has arisen from blending the two vei'dicts, so as to make it appear that 1300: dollars have been given for one and the same slander ; but the two cases are totally distinct as to the rights of the injured parties, and no aid can be drawn in support of the motion from consolidating them. The motion to set aside the verdict is overruled.

The principles above stated apply with at least equal force to the case of *Oakes*v. *Barrett,*in all respects except in re lation to the effect which it is supposed the testimony concerning the character and conduct of this plaintiff ought to have had on the question of damages. But that matter has all been properly before the jury, and we presume had its due effect. This verdict must also stand.

1

 See *Worster*v. *Proprietors of Canal*Bridge, 16 Pick. 547, 548; *Boyd*v. Brown, 17 Pick. 461 ; Chitty on Contr. (4th Am. ed.) 687, note 1, and cases cited; *Boies*v. *M'Allister,*3 Fairfield, 308.