Cummings v. Line — 45 N.Y. St. Rep. 56

Majority

p. 56

Ida M. Cummings, Resp’t, v. Mary A. Line, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Slauder—Damages.

In an action for slanderous words imputing unchastity to plaintiff it appeared that both plaintiff and defendant lived in the same house; that, there were frequent altercations between them; that the defendant was of irascible temper and violent speech; that the words complained of were-spoken in such altercations with plaintiff or her father in her presence, and. consisted of opprobrious epithets, and were in only a few instances casually heard by others; that they were not spoken secretly, insidiously <«r in a manner likely to affect plaintiff’s reputation. Held, that a verdict for $3,000 was excessive, notwithstanding a justification was unsuccessfully-attempted.

Appeal from a judgment in'favor of the plaintiff entered on the verdict of a jury at the Wayne circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.

P. Chamberlain, Jr., for app’lt; George F. Yeoman, for resp’t.

plaintiff recovered in an action of slander, in which the words charged to have been spoken by the defendant imputed unchastity to the plaintiff. It was a case of two families in one house, where the defendant was the owner of the farm and the plaintiff’s father took it to work on shares. These were two prolific sources of disagreement and offense, which soon developed into a chronic quarrel, in which hard words were used on both sides, and even physical violence was at one time resorted to by the plaintiff’s father toward the defendant’s husband. The plaintiff was her father’s housekeeper and woman of all work. The defendant, if the plaintiff’s testimony is to be credited, was a. woman of irascible temper and violent speech, and all or most of the actionable words charged against her were spoken in personal altercation with the plaintiff herself,- or with the plaintiff’s father in her presence. The words usually consisted of opprobrious epithets, either addressed to the plaintiff herself or applied to her in angry conversation' with her father, and in a few cases only casually heard, or overheard, by other witnesses.

p. 57

No instance is disclosed in the case in which the actionable words were spoken secretly, insidiously or in a manner likely to •affect injuriously the reputation of the plaintiff. The very extravagance and exaggeration of the language charged, though apt to excite resentment, was much less calculated to injure reputation •than if it had been deliberate, dispassionate and guarded in tone. Indeed, the call for compensation to the plaintiff was rather for injury to her feelings than to her reputation. And besides there was the question of exemplary or punitive damages. The verdict was for $3,000. We think it was altogether disproportionate to the character arid effect of the wrong committed There was, it is true, an attempted justification of the words, which the jury must have found not to be successful, and which properly went in aggravation of damages, but even then the verdict was largely in excess of what would have ordinarily been expected in a case ■ of this character. Aside from the effect of the attempted justification a verdict of $500 would have been liberal for words spoken in the manner and under the circumstances shown in this case; •and if that had been enhanced by an equal amount by reason of the unsuccessful attempt to justify, the verdict for $1,000 would, we think, have satisfied the highest expectations of the persons •engaged in the prosecution.- It is probable that the extravagance -of the verdict may be accounted for, at least in part, by the fact that there came out, incidentally, in the testimony a boastful declaration of the defendant to the effect that she was worth $80,000. The fact was not in issue,- and if evidence had been offiered to prove it, it must have been excluded, Enos v. Enos, 33 St Bep., •357, and the cases cited, but it is mentioned among the estab • liahed facts in the case in the brief of counsel for the respondent here, and probably was not allowed to escape the attention of the jury on the trial.

, We think a new trial should be granted on the ground that the 'verdict was excessive, unless the plaintiff prefers to stipulate to • reduce it to the sum of $1,000.

Judgment and order reversed and a new trial granted, with •costs to abide the event, on payment by the defendant of the costs of this trial already had, unless the plaintiff stipulate to reduce •the damages entered in the judgment to the sum of $1,000, and in that case the judgment as modified is affirmed, without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.