Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-01

guidance of the jury, was approved, by
this court, in Whiteside vs.. the State
4 Cold, 1870. az ha v8 51e
While the Circuit Judge is under no
obligation to charge the jury upon sb-
stract or irrelevant propositions, yet II
is his duty, in civil as well as in criminal
cases, to charge the law arising upon the
facts in every case, not in remote and
impalpable generalities, but as applicable
to the facts, so as to aid the jury in ar
riying at correct conclusion, See Viii
son vs.. Smith Yerg., S79. Turberille
VS. Ryan; / Hum, 113. See also 5
Yerg., 453; 2 Swan, 237; Head, 209
ID, $40; 2 Head, 565.
The record in this cause shows farther
''The court was asked, by the
defendant, to charge the jury that,
if they believed, from the evidence in
the cause, that the words spoken by the
defendant, were spoken in heat of passion,
or anger, it would be a circumstance to
which the jury might look in mitigation
of damages; but the court refused so to
charge and the defer dant excepted"
The conflict in the authorities upon
this question is more apparent than real.
1t is generally conceded that, in actions
of libel, or SANDER, where the occasion
and circumstances of publishing the libel,
or speaking the words, impose upon the
plaintiff the necessity of proving dis
honest or malicious intention, in fact, the
evidence offered to rebut it is properly
admissible under the general issue. See
/ Wend. Stark. on 81. 454, 2 Greenl.
Ev. S421. And "where the defence is
that the libel, or words, were published,
or spoken, not in the malicious sense i'm
puted by the declaration, but in an limo
cent sense, or upon an occasion which
warranted the publication, this matter
may be given in evidence under the gen.
eral issue, because it proves that the de-
PENDANT Is not guilty of the mali cious
SANDER charged in the declaration. 2
Laund. Pl. and Ev. I'd. ed. S25.
Within this principle are embraced
words lawfully spoken by counsel; mat
ter contained in petition to Congress or
the State Legislature; or in articles of the
peace; or in judicial proceedings and the
like. Ibid, 1926; GreenL, $ 421; 8
Steph. N. P, 2,579. And it is well said
that-"The defendant, under the general
issue, may give in evidence any matter
which tends to disprove either the speak
ing of the words or the publication of
the libel, or to bar the action or rebuff the
evidence of malice, or of special dam
ages" 8 Steph., N. P, 2,579; 2 Stark,
Ev. Sd. ed. 63S.
Applying these principles to the case
at bar, no satisfactory reason is perceived
for the refusal to charge the jury that,
if the slanderous words were uttered in
the heat of passion or anger, that fact
might not be looked to in mitigation of
damages. The evidence was not, and in
the state of the plesdings could not have
been offered in justification. But, from
the proof in the record as to the chastise-
ment of his son, by the plaintiff in error,
it may be reasonably inferred that the
son was a minor, and looking to all the
evidence it is manifest that the slanderous
words were spoken, or are alleged by the
plaintiff in error to have been spoken, in
the course of an alteration with person
who, as he believed, was aiding his son
to marry contrary to his wishes. Now,
if the father entertained the opinion that
his son was about to form an injudicious
or improper matrimonial engagement, or
to unite himself in marriage with a
woman whom he regarded as of doubtful
character, and that the witness was using
every effort in his power ID bring about
so unfortunate an alliance, was it unlaw-
full in him-solicitors, as he doubtless,
was, for the welfare of his son-to re-
monstrste with the witness against bis
interference Was it unnatural thai,
having heard of scheme which he con.
sidered disastrous to his sons happiness,
he should commence the conversation in
an Irritsted toLe, or that be should be-
come irritated in the course Of the alter
cation, which Immediately occurred be-
tween another son and the witness, ard
when the witness himself drew his knife
and became infuriatedl And il, in such
q 'storm of passion" h. uttered Ian
guage, in regard to the pl idtiff, which,
in his cooler moments, he could
not justify, why should the
jury be precluded from Looking TO the
mitigating circumstances under which he
acted7 If pr"voC-tion, in itslegal sense,
will reduce homicide which, but for the
provocalion, would be murder in the first
degree, to manslaugher, why may not
passion d a ger be considered as miti-
eating the a'rnciy of libel or slsnd-rl
Few, if any, civil injuries are greater
than those which result from cool, DELHI
crate, malicious and premeditated libels,
and one of The best modes of preventing
such injuries aod the mortal combats too
often resulting from them is, for the ju-
ries of the country to give redress by ex-
emplary damages. But there is wide
difference between malicious and remorse-
less SANDER and words spoken in the heat
of blood and under provOcation; and we
hold that jury, in fixing the measure of
damages, should be permitted to consider
all the circumstances of mitigation, as
well as of aggravation.
In l Hiliard on Torts, Sd ed. 4O5, $40,
it is said that-''It has been held that, in
an action of sian Ter, the defendant may
show, in mitigation Sf damages, that he
was melted and provoked to the utter
ance of the words, by some act or declar-
alton of the plaintiff, contemporaneous,
or nearly SO, with them, if shown to
have been the immediate and proximate
cause of the provocation. 1t is not suf-
ficient, although it is necessary, to show
that it occurred and was communicated
to the defendant before the speaking of
the words. But this may be proved by
the defendants own declaration, and the
jury is to determine whether the language
which the defendant used was used be-
cause of such provocation received from
the plaintiff. So, in action for libel,
though the defendant cannot give in evi.
dence in mitigation of damages, a dis.
tinct and independent libel on himself,
by the plaintiff; yet, where the publica.
ton is so recent as to afford a reasonable
presumption that the libel by the defend
ant was published under the influence OF
the passions excited by it, or when it is
explanatory of the meaning of or occa.
sion of writing the libel complained of,
such evidence is admissible, although the
libel complained of does not expressly
refer and profess to be reply to the for.
mer publication, if such reference sp
pears on comparing the two. Various
cases are cited by the author in support
of these propositions, which we adopt a:
q correct exposition of the law.
1t has been ingeniously argued for the
defendants in error that it should have
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