Lawyers' Reports Annotated

After an unsuccessful attempt to obtain a new trial, plaintiff appealed.

he should recover from defendant. He prays for judgment against defendant for damages for $15,000. Defendant pleads first the gen- The families of the plaintiff and of the eral issue to that portion of plaintiff's defendant occupied houses about fifteen feet demand wherein he seeks to obtain judgment apart, separated by a fence. Plaintiff's for alleged libel and slander to plaintiff's premises were leased from the defendant. On wife. For answer to that portion of plain- the 29th of May, 1893, plaintiff and defendtiff's demand wherein he seeks to recover ant met at some point in the business part judgment against him for libel and slander of the town of Lake Charles, where a conof himself he pleads in bar of plaintiff's versation took place between them in refright to such recovery that plaintiff and he erence to the continued occupancy of the mutually engaged in cursing and abusing property by Goldberg. The plaintiff says that each other at the time stated; that the lan- Dobberton, in a loud tone, charged him with guage attributed to him in plaintiff's peti- not keeping the premises in a cleanly condition was preceded by language equally li- tion; that, being embarrassed by this, he belous, slanderous, and defamatory on the withdrew, without using any harsh or op part of the plaintiff, who cursed and defamed probrious language. The fact here mentioned him, applying to him many opprobrious, is not referred to in the pleadings, but shown vulgar, and indecent epithets; that at the by the testimony, and is only important as time he was defamed, libeled, and slandered being doubtless the origin of the subsequent as aforesaid, and when he used the language trouble between the parties. Plaintiff's testiattributed to him by plaintiff, said declara- mony in the case begins with the statement tions were without malice, and were used in that on his return home he heard the defenda moment of heat and passion, induced by ant abusing his wife, and that he heard him the immediate preceding words of plaintiff; apply to her an insulting and disgraceful that, both parties being equally in fault, epithet, which he mentions, telling her to plaintiff had no right to recover herein. He get out of his house, to go out at once, and specially denies that he made any assault that he took a bottle towards the fence, and upon or threw bottles at plaintiff. He prayed threw it into their dining room; that he then for and obtained a trial by jury. The jury jumped over the fence, but his wife closed rendered a verdict in favor of the defendant. the doors; that defendant then went from the

and the infirmities of men is declared in Duncan v. Brown, 15 B. Mon. 186, adding that it pays regard also to that higher principle which impels a man to vindicate his own character and fame and which excites and inflames him when his good name is assailed.

In refusing a new trial for inadequacy of damages where a series of gross and offensive libels had been published against a clergyman, the court said that although there could be no set-off of one libel against another, the jury might fairly consider the fact that plaintiff had preached and published vigorous attacks on the defendants. Kelly v. Sherlock, L. R. 1 Q. B. 689, 35 L. J. Q. B. 209, 12 Jur. N.S. 937, 6 Best & S. 480.

That a prior publication by plaintiff of a libel concerning defendant which provokes a libel in retaliation will mitigate damages for the latter is not denied in any case but it is the doctrine of all the cases, with the modification that the libel by plaintiff must have been so connected with the other, or so near it in point of time, as to be reasonably presumed to constitute provocation. As to the proximity in time or the length of interval which should be regarded as cooling time, cases are not altogether consistent with each other. On this point see infra, III., a.

That plaintiff has published a libel provoking that by defendant is said in Moore v. Oastler, 1 Moody & R. 451, note, to have a tendency to show "that the plaintiff is in some measure the cause of the injury he complains of."

In criminal as well as in civil cases the fact that a libel was provoked by a prior libel to which it replies may be shown to mitigate the offense. Hartford v. State, 96 Ind. 461, 49 Am. Rep. 185.

Among the other cases which clearly apply the doctrine that a provocative libel may mitigate damages although it cannot justify another libel, are Battell v. Wallace, 30 Fed. Rep. 229; Thomas v. Dunaway, 30 Ill. 373; Hotchkiss v. Lothrop, 1 Johns. 256; Watts v. Fraser, 7 Ad. & El. 223, 7 Car. & P. 369, ? Nev. & P. 157, 1 Moody & R. 449.

It is held in Pugh v. McCarty, 40 Ga. 449, that only

nominal damages ought to be given for a newspaper article alleging that an employé of a rival paper who made an affidavit in a dispute about circulation was "convicted of perjury by the solemn oath of a gentleman whose veracity stands unimpeached and unimpeachable," where this was in reply to a publication by the other paper of a charge of duplicity and theft on the part of an employé of the former.

In Southwick v. Stevens, 10 Johns. 443, it was held that very trifling or nominal damages were all that should be given for one newspaper libel to answer to another.

So the fact that plaintiff in a libel suit had circulated a charge that defendant used false weights, and refused to sign a retraction on learning that this was not true, mitigates the libel which is published by the injured party in repudiating the slander charged against himself. Knott v. Burwell, 96 N. C. 272.

And the fact that a plaintiff in a suit for libel by a newspaper had previously published a sermon attacking it as "the dregs of provincial journalism," and also charged some of his opponents with subornation of perjury, is to be considered in estimating his damages, and the court cannot say that the jury is bound to give him substantial damages. Kelly v. Sherlock, L. R. 1 Q. B. 686, 35 L. J. Q. B. 213, 12 Jur. N. S. 937, 6 Best & S. 480.

And where plaintiff published a card saying that the purchase of a coat for a person who lost his at a fire while working to save the defendant's store was made by contributions from persons named, among whose names that of defendant did not appear, was regarded as a provocation for an attack on the plaintiff in a publication by the defendant to vindicate himself. Massuere v. Dickens, 70 Wis. 83.

And it is said in Duncan v. Brown, 15 B. Mon. 186, "circumstances of provocation which are insufficient to justify may yet by weakening the inference of malice paliate the publication of a slander or libel and may operate to mitigate the damages to be recovered for it."

rear of the yard (where this had occurred) to the front, cursing both plaintiff and his wife, and again repeating as to her the opprobrious term which he had already used; that he went into the front street, and there again used the same language. He says that when defendant applied to his wife the particular expression mentioned, he (the plaintiff) said that was going too far, and that he would break defendant's neck; that he went into the room, and got a revolver, but when he got back his wife held him, and locked the door, so that he should not go any further. It will be seen that Goldberg's testimony takes up the trouble as one already commenced between plaintiff's wife and Dobberton when he first came to a knowledge of it. He does not attempt to explain how it was or why it was that defendant came to use the language attributed to him to Mrs. Goldberg, or to say who commenced the conversation in which the insulting expressions were employed, and what was said at the commencement. The only persons who seem to have been present at the beginning of the trouble were Goldberg and wife, Dobberton, and Lizzie Smith, a colored woman employed by the Goldbergs, who was examined as a witness for the defense. Her testimony was loosely taken, and does not give occurrences with any definiteness as to the time and order

II. Slander.

It is a well-settled doctrine that words in themselves slanderous will not be actionable if used merely as abusive epithets without meaning what the words ordinarily express, as for instance where one person in a passion calls another a thief without meaning to impute actual theft.

The case of GOLDBERG v. DOBBERTINE might have been decided on this basis as the court says it did not think any one hearing the expressions used "would have considered them other than violent expletives utterly wrong and reprehensible but none the less not really carrying in themselves charges of the commission of the offenses which the terms themselves would have implied as having been committed had they been made coolly and deliberately."

Three of the cases cited in support of the decision are of similar character. Thus Artieta v. Artieta, 15 La. Ann. 48, decided that it was not actionable to call another a rogue in a moment of irritation merely with a reference to an unwillingness to pay money claimed to be due.

And Fulda v. Caldwell, 9 La. Ann. 358, was also a case in which it did not appear that there was any real elander. The court said: "The jury no doubt regard the opprobrious epithets so lavishly bestowed by both of them on each other as mere mutual vituperation and abuse. Under these circumstances we will not disturb the verdict."

So in Young v. Bridges, 34 La. Ann. 333, it is held not actionable to call a person a "thieving puppy and villain" in the course of mutual vituperation, although in this case the court does not make it very plain whether it regarded the words as spoken in a slanderous sense or not.

To the same effect it is held in McKee v. Ingalls, 5 Ill. 30, that it is not actionable to call a person a thief in the heat of passion without any intent to Impute crime.

And in Ritchie v. Stenius, 73 Mich. 563, substantially the same decision is made. Also in Fisher v. Rotereau, 2 McCord, L. 115.

in which they took place. From it it would appear, however, that on Goldberg's returning home he related to his wife the circumstances connected with the meeting of him. self and Dobberton in the street, of which we have spoken, and that a conversation took place between the two in relation to that matter in which some expression not complimentary to Dobberton was made use of by Mrs. Goldberg; that Dobberton, who was standing in his own yard at the time, heard this remark, and became very much angered. A very excited, wordy altercation followed, in which Goldberg himself is not shown (so far as this witness' testimony goes) to have used any particular epithets, though, to use her expression, "all three were fussing." She denies that Dobberton went into plaintiff's yard, or jumped over the fence, or threw any bottles. She denies that at that time defendant used towards Mrs. Goldberg the objectionable epithets spoken of in the petition. She says, however, that, not wishing to get involved in the trouble, she left before it was over that she heard the parties still talking, but did not hear what they said. She says that in the course of that part of the conversation which she did hear she heard Mrs. Goldberg make a very insulting remark to Dobberton, which remark witness repeated in court. This witness being asked whether she which the question of mutual vituperation does not particularly appear.

In Johnston v. Barrett, 36 La. Ann. 320, the court said, "Where persons actually engage in bandying opprobrious epithets an action of slander is not to be favored for words thus uttered," but this was said after deciding that there was nothing to show that plaintiff had been injured in his reputation or standing.

The same rule in substance that has been established in libel cases is established also in case of slander. Acts or declarations which provoke passion and thereby cause the person provoked to defame the one provoking him are sufficient to mitigate damages but not to justify the defamation. Jauch v. Jauch, 50 Ind. 135, 19 Am. Rep. 699; Mousler v. Harding, 33 Ind. 176, 5 Am. Rep. 195; McClintock v. Crick, 4 Towa, 453; Freeman v. Tinsley, 50 Ill. 497; Hosley v. Brooks, 20 Ill. 116; Harbison v. Shook, 41 Ill. 142; Flagg v. Roberts, 67 Ill. 485; Miller v. Johnsou, 79 Ill. 58; Miles v. Harrington, 8 Kan. 425: Powers v. Presgroves, 38 Miss. 227; Else v. Ferris, Anthon, N. P. 23; Courtney v. Mannheim, 39 N. Y. S. R. 125; Palmer v. Lang, 7 Daly, 33; Walker v. Flynn, 130 Mass. 151. See also infra, III., b.

III. Time and connection of charges.

a. In libel cases.

But some connection must be shown between the libels published by the plaintiff and the defendant in order to make the former such provocation for the latter as will mitigate damages. Tarpley v. Blabey, 2 Bing. N. C. 437, 2 Scott, 642, Hodges, 414; May v. Brown, 3 Barn, & C. 113, 4 Dowl. & R. 670; Maynard v. Beardsley, 7 Wend. 560, 22 Am. Dec. 595.

Mere evidence that plaintiff was a common libeler is not admissible. Dole v. Lyon, 10 Jobns, 447, 6 Am. Dec. 346.

And proof that plaintiff has frequently libeled the defendant is not admissible although it is said that letters published in the same correspondence would be. Wakley v. Johnson, Ryan & M. 422. So in Child v. Homer, 13 Pick. 503, it is said that There are other decisions of the same sort in the rule as to provocation by prior libel applies

had not on the night of the disturbance told violently, which language he admits he rea certain person named that defendant had turned in kind. He says that Goldberg told applied to Mrs. Goldberg the epithets com- him if he would come across the fence he plained of, denied having done so. At a would break his neck; that he tried to get later stage of the proceedings the person over the fence, but that his wife took hold referred to was produced, and testified that of him, and prevented him; that he then went the witness had told her on the night in to the front towards the gate on the street, question that defendant made use of one of and invited the plaintiff to come out and the expressions, giving to her its correspond-break his neck; that it was this threat of ing word in French. Dobberton's version of plaintiff's which made him mad. He admits the affair is that at the time of the quarrel using profane language and cursing on the he was in his back yard, when he heard a street, but denies that he ever cursed Mrs. woman using very vulgar language about Goldberg at any time there. He states that some Dutchman; that at first he paid no he always respected her as a lady, and deattention, but finally "he said something, nies that either on this or any other occathough without mentioning any one's name." sion did he make use of the words alleged What he did say we do not know, as the in the petition about her or to her. We may transcript has left out some portion of say here that there is nothing in the record this testimony. We think it clear that which in the slightest degree would go to he must have said something uncomplimen impugn the character of the plaintiff's wife. tary, which called out a remark from Gold-The testimony of those who have known ber berg's wife, for, after making Dobberton all her life show that an attack upon it would declare that "he said something without have been thoroughly unjustifiable, and dementioning names," the transcript makes him fendant so admits. The only person who next declare that he said (evidently to her), testifies to defendant's having applied to "I ain't talking to you" and immediately plaintiff's wife the epithets mentioned in the afterwards makes him say, "Then this lady petition is the plaintiff himself, and his said, 'I am talking to you' using an in- testimony is met by the positive testimony sulting expression to him. Dobberton testi- of the defendant to the contrary. If the fies that after this Goldberg (from across the particular expressions complained of were in fence) commenced abusing and cursing him fact used, they could not have worked any

only to recent publications, all parts of a connected controversy.

b. In slander cases.

The provocation need not be in words spoken by the person who gives the provocation to the person to whom it is given. Thus abusive language to one's wife and children repeated to him on com

But it seems that connection in subject-matter ought not to be regarded as absolutely essential to permit the operation of the rule as to mitigation by provocation where the defendant's libel is pub-ing home constitutes provocation which will mitilished in retaliation while amarting under the effect of plaintiff's libel.

In Child v. Homer, supra, a reply to a newspaper Ibel presumably written on the same day and published on the day following is regarded as made under the influence of the provocation.

But libel charging a physician with malpractice, published on the day after a libel commenting on an alleged "brutal jest," was held in Quinby v. Minnesota Tribune Co., 38 Minn. 528, to have doubtful right to mitigation as there was time for the blood to cool.

Any provocation by a newspaper libel three days before is denied effect to mitigate a newspaper libel which was not in reply to the former, as there had been time for the passions to cool. The court said: "There must be some relation, some perceptible connection, between the subject-matter of the publications." Beardsley v. Maynard, 4 Wend. 336.

After a lapse of two weeks a publication in reply! was held to be too late to afford a presumption that it was published under the impulse of passion produced by the prior libel. Gould v. Weed, 12 Wend. 12.

Yet charging a person with false swearing in court and afterwards refusing to retract was held sufficient to mitigate a libel about two months after the charge was made, in a card calling the other party a degraded scoundrel, a liar, and a blackguard. Davis v. Griffith, 4 Gill & J. 342.

A merely boastful advertisement by an agent of the merits of pianos for sale by him is held not admissible to mitigate a libelous publication charging him with having recommended others as superior while acting as agent for both. Whittemore v. Weiss, B3 Mich. 348.

Mere proof of a previous difficulty is not admissible as a basis for mitigation of a libel. Brown v. Autrey, 78 Ga. 758.

gate damages for slanderous charges immediately made by him in retaliation. Newman v. Stein, 75 Mich. 402.

So insulting or provoking words by plaintiff to a third person about defendant in the latter's hearing may mitigate slander spoken by defendant about plaintiff to the third person immediately after. Ranger v. Goodrich, 17 Wis. 79.

And irritating language by one party to another party in a law-suit claiming to have good witnesses in his own family does not constitute provocation for a charge made by the latter to a third person that the son of the former testifies falsely for his father. Underhill v. Taylor, 2 Barb. 348.

Mere expressed hostility to another and a statement that one does not wish to live in peace and on good terms with him does not mitigate a slander by the latter of the former. Andrews v. Bartholo mew, 2 Met. 509.

But irritation on seeing on one's steps a rival who has enticed away customers may be provocation which will mitigate damages for calling him a thief. Dolevin v. Wilder, 34 How. Pr. 488.

So an abuse of one's confidence by testifying in a law-suit to admissions made by him to the witness may constitute provocation for slanderous words about the witness. Miles v. Harrington, 8 Kan. 425. A charge that excitement mitigates slander was considered in Brown v. Brooks, 3 Ind. 518, in which it was said that the defendant, at least, could not complain of it, but that it was too favorable to him, because words might be spoken with malice even in the heat of passion.

In Pierson v. Steortz, Morris (Iowa) 136, one ground of alleged error was an instruction that a person would be liable for words spoken in the heat of passion. This was not discussed in the opinion but the judgment was affirmed.

The general habit of plaintiff in a slander suit to

careful examination of this case, we have come to the conclusion that at most it would fall within the rule announced in Fulda v. Caldwell, 9 La. Ann. 358, where it is said that "the interchange of opprobrious epithets and mutual vituperation and abuse will justify a judge in approving a verdict for the defendant, although the slanderous words were proved; and a verdict rendered in such a case will not be disturbed by the supreme court." See on this subject, Artiēta v. Artieta, 15 La. Ann. 48; Young v. Bridges, 34 La. Ann. 336; Bigney v. Van Benthuysen, 36 La. Aun. 38. In Johnston v. Barrett, Id. 320, this court said: "Where persons mutually engage in bandying opprobrious epithets, an action of slander is not to be encouraged for the words thus uttered." We see no reason to disturb the verdict of the jury and the judgment of the court thereon rendered.

damage to character, as no third person has
been produced on the stand who heard them.
We are unable, from the record, to say who
commenced the war of words, and who was
first to blame. The whole matter seems to
have been one of those quarrels constantly
occurring between neighbors, to the credit
of neither, from which, if either or both
suffer damage, it is from the fact of the
quarrel itself, and not from the force and
effect of the various insulting or disgraceful
epithets which are hurled at each other in the
course of it. We do not think that, had de-
fendant, under the circumstances of this case,
made use of the expressions charged, any one
hearing them, as so used, would have con-
sidered them other than violent expletives,
utterly wrong and reprehensible, but none the
less not really carrying within themselves
charges of the commission of the offenses
which the terms themselves would have im-
plied as having been committed had they
been made coolly and deliberately. After a firmed.

The judgment appealed from is hereby af

vilify defendant is held not provable to mitigate | caused by the improper conduct of an adverse damages, although language which constituted party. Sheffill v. Van Deusen, 15 Gray, 485, 77 part of the res gesta would be competent. M'Alex- Am. Dec. 377. ander v. Harris, 6 Munf. 465; Goodbread v. Ledbetter, 18 N. C. 12. See also Dole v. Lyon, 10 Johns. 447, 6 Am. Dec. 346, and Wakley v. Johnson, Ryan & M. 422, III., a.

So frequent allegations by plaintiff in a slander suit to the effect that defendant was insolvent was held to constitute provocation for defendant's statement that plaintiff was insolvent, although the latter was not made immediately after plaintiff's statements. Botelar v. Bell, 1 Md. 175.

The state of feeling existing between the parties to a slander suit at the time of the slander may be pertinent evidence, but it is otherwise with respect to their feeling at a previous time. Justice v. Kirlin, 17 Ind. 588.

The provocation for a slander which can mitigate It need not immediately precede it but should be contemporaneous or nearly so. Hackett v. Brown, 2 Heisk. 264.

Plaintiff's abusive and provoking language to defendant in the afternoon may mitigate a slander spoken when the quarrel was renewed in the evening. Warner v. Lockerby, 31 Minn. 421.

Transactions long prior to the time of a slander and conversations forty-eight hours previous thereto are denied effect as provocation, in Steever v. Beehler, 1 Miles (Pa.) 146.

Although under the practice in Ireland disconnected slander may be ground for a counterclaim, an allegation of divers quarrels between the parties and their wives was held improper and was struck out of an answer. Quin v. Hession, 40 L. T. N. S. 70, L. R. 4 Ir. Rep. 35.

Provoking and violent words spoken by the plaintiff the evening before were held insufficient to mitigate a slander although it was said that the law makes allowance for the infirmities of human nature and what is done in the heat of passion 28 L. R. A.

Equally offensive and insulting words by the plaintiff spoken at another time were held not to mitigate defendant's slander, in Bourland v. Eidson, 8 Gratt. 27, where the court speaks of the slanders as "reciprocal crimination unconnected except by a general spirit of hostility and revenge."

The general rule is fairly expressed by the decision in Moore v. Clay, 24 Ala. 235, 60 Am. Dec. 461, to the effect that derogatory language by the plaintiff provoking the slander complained of must have been concurrent or nearly so, so as to have actually incited and provoked it.

So in Richardson v. Northrup, 56 Barb. 105, it is held that no act or declaration of the plaintiff against the defendant is provable to mitigate damages for slander unless it was part of the res gestæ. But it is held that a series of provocations may be proved provided they continue to the time of the words complained of. Here the provocation consisted of a series of petty law-suits sustained in whole or in part by the testimony of the plaintiff himself and the slander was in charging perjury.

Former controversies having nothing to do with the subject of a slander cannot mitigate it. Lister v. Wright, 2 Hill, 320.

Passion caused by an assault on the defendant in a slander suit by the plaintiff may mitigate the slander but will not mitigate a repetition thereof after time to cool. Thomas v. Fisher, 71 Ill. 576.

Calling defendant a liar and perjured wretch was held not provable to mitigate his slander by calling the plaintiff a perjurer on another occasion not connected with the former, and plaintiff's habitual attempts to irritate the defendant and his inveterate and continued hostility were also held not provable in mitigation. Porter v. Henderson, 11 Mich. 20, 82 Am. Dec. 59. B. A. R.

INDIANA SUPREME COURT.

COLUMBIAN ATHLETIC CLUB, Appt.,

STATE of Indiana, ex rel. Willis C. McMAHAN.

Repeals by implication are not favored. Blain v. Bailey, 25 Ind. 165; Bowen v. Lease, 5 Hill, 221; Bruce v. Schuyler, 9 Ill 221, 46 Am. Dec. 447; Dwarris, Stat. 664; Tyson v. Postlethiraite, 13 Ill. 728; McCool v. Smith, 66 U. S. 1 Black, 459, 17 L. ed. 218; Sedgw. Stat. & Const. L. 127; Chesapeake & O. Canal Co. v. Baltimore & O. R. Co. 4 Gill & J. 1; Wilprize-liams v. Potter, 2 Barb. 316.

J. An injunction against the abuse of corporate privileges by conducting fights will not be denied because the wrongful If prize-fighting is a crime, as unquestion

acts constitute crimes.

2. A receiver of the property of a corporation which has forfeited its franchise by unlawfully conducting prize fights may be appointed to hold the property subject to the order of the court when necessary to aid an injunction against the further unlawful use of the property.

(June 4, 1895.)

APPEAL by defendant from coudly enjoio the Court for Lake County ing it from continuing to exercise functions which it claimed the right to exercise under its charter and appointing a receiver for a portion of its property. Affirmed.

The facts are stated in the opinion. Messrs. John B. Peterson and E. D. Crumpacker for appellant.

Messrs. James E. McMullough, J. Kopelke, and Willis C. McMahan, with Messrs. Byron K. Elliott and William F. Elliott, for appellee:

The complaint shows that the corporation is engaged in no other business than that of breaking the law by conducting prize fights. The statute making prize-fighting a crime is

valid.

The term "prize fight" has a definite and known meaning. It needs no statutory defini. tion.

Seville v. State, 15 L. R. A. 517, 49 Ohio St. 117: People v. Taylor, 21 L. R. A. 287, 96 Mich. 576; Com. v. Welsh, 7 Gray, 324: Com. v. Barrett, 108 Mass. 303; Sullivan v. State, 67 Miss. 346; People v. Kent, 1 Dougl. (Mich.) 42; Rice v. People, 15 Mich. 9; Durand v. People, 47 Mich. 332.

Where a term has a known meaning it may be used in a statute declaring what shall constitute a criminal offense without defining it. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Bloom v. Franklin L. Ins. Co. 97 Ind. 478, 49 Am. Rep. 469; Burke v. State, 27 Ind. 430; State v. Craig, 23 Ind. 185; State v. Oskins. 28 Ind. 364; Wall v. State, 23 Ind. 150; Hartford v. State, 96 Ind. 461, 49 Am. Rep. 185; Hed derich v. State, 101 Ind. 564, 51 Am. Rep. 768. The legislature has not empowered the appellant to engage, as it has done and was doing until checked by the order of the trial court, in the business of conducting prize-fights.

It was not intended that a corporation or ganized under the voluntary association act should have authority to engage in the business of procuring and conducting prize-fights.

NOTE.-As to authority to appoint a receiver of

corporation when no other relief is asked, see note

to Supreme Sitting Order of Iron Hall v. Baker

(Ind.) 20 L. R. A. 210.

Books

Lawyers' Reports Annotated, Book 28