
    Marvin Fowler and Catharine Fowler v. Lillian Chichester.
    1. Testimony may be given in an action of slander tending to show the social relations of the parties thereto.
    •2. In such action, it is not error to refuse to instruct the jury, that if the defendant, at the time of speaking the words, stated them as a report and gave his authority, such communication of the previous publication would be a justification of the repetition.
    .3. The act of May 1, 1861, and the amendments thereto, “concerning the rights and liabilities of married women,” do not change or abrogate the rule of the common law making the husband liable for torts committed by the wife during coverture.
    4. In an action against husband and "wife for slanderous words spoken by the wife, exemplary damages may be allowed.
    Motion for leave to file a petition in error to the District ■Court of Cuyahoga county.
    The action was brought in the Superior Court of Cleveland, to recover of the plaintiffs in error for slanderous words uttered and published by Catherine Eowler, wife of Marvin Eowler, imputing to the defendant in error want of chastity.
    On the trial, counsel for plaintiff asked Mrs. Alice A. Chichester, the mother of the plaintiff, and called as a witness in her behalf, the following question: “ State what you know as to the society your daughter and Mrs. Eowler moved in; whether or not they moved in the same society, about the first of April last ? ”
    The question was objected to by the defendants, the objection overruled by the court, to which the defendants excepted, and the witness answered: “Mrs. Eowler went in the same society—church sociables and such things.”
    The plaintiff', who was also examined as a witness in her ■own behalf, was asked several questions of like import by her counsel, which were severally objected to by the defendants, the objection to each overruled, and the rulings-’ excepted to; and which were answered by the witness.
    After the evidence was closed, counsel for the defendants-requested the court to instruct the jury:
    1. That if, at the time of the alleged speaking of the-words, Mrs. Fowler stated them as a report, and gave her authority, that such communication of the previous publication is a justification of the repetition, and that under such circumstances the action can not be maintained, unless at the time of the alleged publication the jury find she was actuated by express malice.
    2. That under the laws of Ohio, judgment can not be rendered against the husband for the tort of the wife, unless he was present, or aided or acquiesced in the wrong.
    3. That in suits against husband and wife for the tort of the wife, and where the husband was not present, neither consented nor acquiesced in the wrong, exemplary damages can not be recovered against him.
    The court refused to so instruct the jury, and the defendants excepted.
    The jury having returned a verdict for the plaintiff, the defendants moved for a new trial, which motion was overruled, and an exception entered by the defendants to the ruling.
    The judgment rendered on the verdict was afterward affirmed by the District Court.
    The overruling of the objection of the defendants to the admission of testimony; the refusal of the Superior Court to instruct the jury as requested by the defendants, and the affirmance of the judgment by the District Court, are assigned for error.
    
      S. Burke, for the motion :
    1. It may be perfectly competent for a plaintiff in á slander case to prove his or her own position or standing in society, inasmuch, as it may bear upon the question of damages ; but it is not competent to prove that the plaintiff and defendant, without any regard to their standing in society,. moved in the same social circle; and it clearly is not competent for the plaintiff to put into the mouth of her own mother as her witness, the words, “ State whether or not they moved in the same society about the first of April last?” This question is certainly loading and suggestive.
    2. The court erred in permitting questions to be asked the plaintiff in regard to Mrs. Fowler’s connection with the-Congregational Church and the answers thereto.
    The words alleged to be spoken had no relation to that church; and it is very clear that the fact of Mrs. Fowler’s membership with that church was only sought to be called out for the purpose of bearing upon the question of damages; and hence the question presented to this court is, whether, upon the trial of a slander case, it is competent for the plaintiff, in aggravation of damages, to prove that the defendant is a member of any particular church or society, or political party. We think it is not.
    3. The court erred in holding the law to be that the defendants were just as answerable for the repetition of a slander upon information which they received, as if they had originated and published the slander.
    4. The court erred in holding that the defendant, Marvin Fowler, was liable in a case like this for exemplary damages.
    The court will bear in mind that a plaintiff is never entitled to exemplary damages; under no possible circumstances can the plaintiff put forth any just claim to exemplary damages. When the plaintiff has been fully compensated for all the injury sustained, then complete justice has been done him, and he has no further claim upon the defendant.
    Now, in this case, there is no pretense that Mr. Fowler was in any respect to blame; he is a party here simply and solely because hr-, is the husband of Catherine Fowler. He never uttered a slander against the plaintiff; he never in any respect did her 'any injury. Under such circumstances, it seems to us the most that can be claimed of him is, that being answerable for the torts of his wife he shall respond in damages to the full extent of the injury which she commits, But that there is no law and no justice in holding that he shall do more—that he shall be punished for her torts, or that he shall be visited with punitive damages because of the rélation which he sustains to the other defendant.
    5. We also claim (and this is certainly a very important ■question) that the husband is not (under the present state of legislation in Ohio) answerable for the torts of his wife. This has been expressly decided in Hlinois. Am. Law Reg. for 1874, p, 553.
    
      E. J. Estep, also for the motion.
    
      A. G. Caskey, contra:
    1. Under the law of Ohio it is no defense to an action of slander to say that the speaker had heard some one else say .SO' in regard to the slander uttered. Stevens v. Handly, Wright, 128; Sexton v. Todd,, lb. 316; Haines v. Welling, 7 Ohio, 253.
    2. The only thing out of the way in the questions asked, and to which the counsel for defendant objected, is their leading nature; but that is not a ground on which a court will reverse a decision.
    The facts sought to be proved by the questions asked were perfectly competent to establish the relative position in society of the plaintiff and her slanderer; .and this as bearing on the question of malice and also of damages, and the questions were put for this purpose alone.
    A slander uttered by an acquaintance, by a member of the same society with the plaintiff, a member of the same church, would have far greater tendency to injure and destroy, and would evidence much more malice than it would coming from a stranger.
    3. The reason for the old common-law rule holding a husband liable for the torts of his wife, was not that he acquired her property; but because the wife became subject to her husband and under his control. And these reasons ■exist just as much to-day as they ever did. Rowe v. Smith, 
      45 N. Y. 230; Baum v. Mullen, 47 N. Y. 577 ; Vanneman v. Powers, 56 N. Y. 39.
    The act of March 23,1866 (S. & S. 391), says the separate property of wife shall also he liable for her torts, very plainly indicating the intention of onr legislature to add to and not to take from that which was liable for the torts of the wife.
    But husband and wife must be joined in a suit for the tort of the wife. Code, sec. 28.
    4. The fourth error alleged is, that the court below erred in refusing to charge the jury, as requested, that the husband would not be liable for punitive damages unless he consented to or participated in the tort of the wife.
    If the husband is liable at all, he is liable for all; there-can be no dividing line. The jury could not render one-verdict against the husband and wife jointly, and another against the wife alone.
   Rex, J.

The first question to be determined is: Did the-Superior Court err in overruling the objection of the plaintiffs in error to the testimony offered by the defendant in error ?

We think it did not. It is proper in an action of slander for the plaintiff to show, not only her social relations, but also the social relations of the defendant, for the purpose of enabling the jury to determine the nature and extent of the injury.' The object of the action of slander is to recover damages for the injury sustained, in consequence of the uttering and publishing of the false and malicious charge; any evidence, therefore, which tends to show the nature- and extent of the injury is admissible.

The refusal of the court to instruct the jury as requested by the defendants in their first proposition, is next assigned for error.

The proposition is, that if at the time of the speaking oi the words, the defendant stated them as a report, and gave her authority, such communication of the previous publication is a justification of the repetition. This, we think, is-not the law. A party is not protected from an action by the party injured, by communicating a previous publication and giving the name of the publisher at the time he repeats the slanderous words. Hains v. Welling, 7 Ohio, 253. Malice may be evinced in circulating slanderous reports as well as in originating them; and if the words repeated are actionable in themselves, the malicious intent in publishing them will he inferred, unless it be shown that the circumstances under which the words were uttered and published were such as to repel the inference. The circumstances shown in this case were not of such character, and therefore the court did not err in refusing to give the instructions requested.

It is also claimed that the court erred in refusing to give to the jury the instructions asked in the second and third requests of the defendants.

The act of the general assembly of May 1, 1861 (S. & S. 889), as amended March 23,1866 (S. & S. 391), and as further amended March 80, 1871 (68 Ohio L. 48), “ concerning the rights and liabilities of married women,” does not relieve the husband of his common-law liability, for torts committed by his wife during coverture. There is nothing in the act which evinces, in any degree whatever, an intent to change or abrogate the rules of the common law in this i-espect, and therefore we will not, by implication, extend its provisions. Under these rules, in an action against husband and wife, for slanderous words spoken by the wife, exemplary damages may be allowed.

Motion overruled.

McIlvaxne, C. J., Welch, White, and Gilmore, JJ., concurred.  