
    Duval v. Davey.
    1. Where words defamatory of the character of a married woman are published in the presence and hearing of her husband, he is a competent witness to prove the speaking of the words in an action of slander brought by husband and wife.
    2. In an action of slander by a woman, where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her can not be given in evidence, for any purpose, under the issue made by a general denial.
    3. Where the slanderous words set out in the petition charged the plaintiff, a female, with a want of chastity, under such issue it is competent, in mitigation of damages, to show that plaintiff’s general reputation fo? chastity at and prior to the speaking of the words was bad. Dewitt v. Greenfield, 5 Ohio, 225, overruled.
    Error to the District Court of Hocking county.
    Hannah Davey and Joseph Davey, defendants in error and plaintiffs below, brought au action for slander against John GL Duval, plaintiff' in error and defendant below, in which action Hannah Davey, a married woman and wife of Joseph Davey, charged John Gr. Duval with having uttered and published of and concerning her slanderous words, as follows, to wit: “ Is that you, Davey (then addressing the words to plaintiff, Joseph Davey) you God damned thieving son of a bitch, you came out here and married that God damned false swearing, whoring bitch of a woman ” (meaning the plaintiff', Hannah, wife of Joseph), meaning that said plaintiff, Hannah, is an unchaste woman, and that she is or was guilty of the crime of perjury.
    The answer was a general denial. A trial resulted in a verdict for the plaintiff'. A motion for a new trial was overruled, and judgment entered. The proceedings and-judgment of the court of common pleas were affirmed on error in the district court. A petition in error was filed in the supreme court, praying that, for errors there assigned, the proceedings and judgments of the lower courts be reversed.
    The errors assigned are substantially as follows :
    
      First. The trial court erred in admitting certain evidence offered in behalf of plaintiff below, and excepted to by the defendant below, as shown by the bill of exceptions.
    
      Second. That the court erred in ruling out certain evidence offered by defendant below on the trial, which rejected evidence is set out in the bill of exceptions.
    
      Third. That the court erred in permitting Joseph Davey, the husband of Hannah Davey, to testify in the case to certain matters set out in the bill of exceptions.
    
      Fourth. That the court erred in its charge to the jury.
    
      Fifth. That the court erred in refusing to allow the witness, Carnes, on cross-examination, to answer certain questions, as shown by bill of exceptions.
    In the progress of the trial plaintiff below offered as a witness Joseph Davey, who testified that on one occasion, and about the 1st of October, 1872, the defendant, John G. Duval, came to the house of the plaintiffs, and in the presence and hearing of the plaintiffs, and no other person, said to Hannah Davey: “ You God damned whoring bitch,” and also other remarks concerning the plaintiffs, Joseph and Hannah Davey; to the introduction of which testimony the defendant, by his attornej^s, objected at the time. The court thereupon overruled said objection, and permitted such evidence to go to the jury. To which the defendant at the time objected.
    At the close of the plaintiffs’ testimony, the defendant, for the purpose of mitigating damages, offered in evidence the deposition of John G-. Hartman, to the introduction of which plaintiffs, by their counsel, objected. The court sustained the objection, so far as to exclude question seven in the deposition, and the answer thereto. Also excluded the cross-examination of the witness as to such special matter. Question seven and answer thereto are as follows :
    “ Q. During the time you worked for Mrs. Davey, then Mrs. Blake, did anything take place between you and her of an intimate character? If yea, state all about it, when, where, and its nature, giving all the particulars in detail. (Plaintiffs object to interrogatory.)
    
      “A. There did, I suppose ; I suppose I know ; I reckon you want to know how often I ‘diddled’ her, and all this. As near as I can recollect, I had sexual intercourse with her three times. The first place was in the kitchen, on the second night after I went there ; as near as I can recollect, twice after that was on the bed ; do n’t recollect what nights it were ; this was in 1866, during the time I was working there ; these were the only times I had anything to do with her.”
    To which holding and ruling of the court the defendant at the time excepted..
    Portions of the deposition of one Elizabeth Paugh, detailing special instances of a want of chastity on the part of the plaintiff, Hannah Davey, were objected to by plaintiffs, and by the court excluded; to which ruling of the court defendant below excepted.
    As recited in the bill of exceptions, the defendant, to disprove malice, and by way of mitigation of damages, called to the witness-stand one Jerome Watkins; after being duly sworn, the defendant, by his attorneys, propounded to said witness the following questions, among others: “ Have you the means of knowing what was the general reputation of Hannah Davey, the plaintiff, in the community where she resided at the time of, and before, the alleged speaking of the slanderous words set out and stated in the petition, for chastity and virtue ?” To which question the plaintiffs, by their attorneys, objected, and the court sustained the objection, and refused to permit said question to be answered, to which holding and ruling of the court the defendant at the time excepted.
    And thereupon the defendant, after having shown by the witness, that he had for many years resided in the neighborhood of the plaintiff, and had the means of knowing the general reputation of said Hannah Davey for chastity at the time of, and before, the alleged speaking of said slanderous words, and in the neighborhood where she then, and for many years had, resided, then asked of said witness the following question: "What was the general reputation of Hannah Davey, in the county where she resided, for chastity and virtue, at the time of, and before, the alleged speaking of said slanderous words set out in the petition, to wit, April 25,1872, and prior thereto ? To which question the plaintiffs, by their attorneys, objected, and the court refused to permit said question to be answered; and thereupon the defendant proposed and offered to prove bv said witness, that the plaintiff, Hannah Davey, at the time referred to, had and sustained a general had reputation for chastity and virtue; and thereupon, the plaintiffs objecting to the introduction of said testimony, the court refused to permit any testimony to be given to the jury, touching the reputation of Hannah Davey for chastity, and the court stated and directed that the only evidence of reputation that the defendant was entitled to produce and show was the general reputation of Hannah Davey as a woman, and that the inquiry could not be confined to the reputation for chastity or virtue, or any other particular; to which holding and ruling of the court the defendant at the time excepted.
    The defendant below having offered evidence tending to show that Hannah Davey did not sustain a good general reputation in the county in which she resided, thereupon plaintiff below introduced evidence tending to show that she was a woman of good reputation at the time referred to, and, among others, called as a witness James H. Carnes, who, in his examination, testified that he had known the plaintiffs for several years; that he had the means of knowing the general reputation of the plaintiff, Hannah Davey, in the community in which she resided, and that her reputation was good, and that he had never heard anything against her reputation as a woman.
    Thereupon the defendant below, to disprove the statements of the witness, and to reflect upon the character of the testimony so given by the witness in chief, offered, on cross-examination, to show that Hannah Davey had been in the habit, for a loiig period of time, prior and up to the time of the speaking of the said slanderous words, of associating with lewd, unchaste, and immoral men and women, and that such lewd, unchaste, and immoral persons were, and had been for a long time, the associates and companions of said Hannah.
    And the said defendant, for the purpose of impeaching the said witness, and his said testimony so given in his direct examination, asked of said witness if he did not, on a certain occasion (giving time, place, and circumstances), say to Andrew Wood and James Paugh that he (the witness) did have sexual intercourse with the said Hannah Davey, while the said Hannah Davey was a single woman, and if he 'did not give the time, place, and circumstances under which he so had intercourse.
    Plaintiff objected. The objection was sustained and defendant excepted.
    
      S. Weldy and John S. Brasee, for plaintiff in error:
    Evidence is only admissible on the question of malice for the purpose of affecting the amount of recovery. 5 Ohio St. 293; 6 Ohio St. 516; 1 Kern. 347; 19 Mich. 17; 2 Am. Rep. 66.
    
      As to the evidence in mitigation of damages and to disprove malice, see Wilson v. Apple, 3 Ohio, 270; Haywood, v. Foster, 16 Ohio, 90; Townsend on S. & L. 623; 2 Starkie oh Slander, 90.
    
      Friesner & Case, and C. H. Ripey, for defendant in error:
    Evidence of particular acts were not admissible. Wilson v. Apple, 3 Ohio, 270; 5 Ohio, 225; 16 Ohio, 88; 5 Ohio St. 294; 6 Ohio St. 516; Wright, 316; 7 Ohio, pt. 1, 253; 14 Ohio, 418; 3 Starkie, 369, 878; 6 Mass. 514; 1 Am. L.. C. 233.
   Ashburn, J.

1. Was it error to permit Joseph Davey to testify, under the circumstances in which the alleged, conversation, or rather declarations, took place.

As alleged in the petition and disclosed by the testimony,, the defamatory words, as testified to by Davey, had in them, no element of a confidental relation as between husband, and wife. The language used by defendant was addressed to the wife in the presence of her husband. There was a known third party, John Gr. Duvall, present, which would,, uuder any circumstances, render the husband a competent witness. Uttering the defamatory words to or in the presence of the husband was a publication, and to one vitally interested in their truth, and any damaging effect suck words were likely to have upon the character of his wife.. We think the husband was a competent witness.

II. Did the court err in excluding evidence directly showing acts of sexual intercourse by Hannah Davey,, while single, with Hartman and others?

This class of evidence was, under the pleadings, properly excluded. Its direct tendency was to prove a justification. If credited, it would have shown her guilty of a want of chastity — proved the truth of the words.

It has long been the settled rule, and recognized in the practice of this state, that under the general issue, to-which the general denial provided in the code is, in effect,. 'in this class of cases, practically analogous, a. justification •can not be proved. Townsend on Slander, etc., § 409; Eoulkard’s Starkie on Slander, etc., § 667. Where the testimony proposed to be offered can have no other effect than to make apparent the guilt of the plaintiff, and prove the truth of the words spoken, thereby necessarily tending ■to justify the speaking of the words, and not merely to mitigate damages, the facts relied on, and proposed to be •offered in evidence, must be specially pleaded, and can not be permitted to go in evidence under the general denial. Hayward v. Foster, 16 Ohio, 88.

III. Hid the court err in refusing to allow defendant to prove, in mitigation of damages, plaintiff’s general reputation for chastity?

This question is not without difficulty. The rule, as gathered from the text books, is by no means uniform, and the reported decisions of other states and countries are in •conflict on this point. Our own supreme court, in Dewitt v. Greenfield, 5 Ohio, 225, limits.the inquiry to the “ general good or bad character of the party” The reason of the rule is said to be, “ A man is supposed to be always ready to sustain his general character, but not to meet particular reports.” This rule is too contracted to meet all eases. When a party is charged with a particular vice of character, that particular element of character is put in issue by the general denial; and the party, knowing that his char.aeter is assailed in a particular respect, must be held as ready to sustain his general character in the respect in which it is attacked, as to sustain it as a whole.

It is said in Dewitt v. Greenfield, supra, “ but spreading a plea of the truth of the words on the record, in justification, is always an aggravation of the damages, if not proven.” This rule of damages has been changed by the casé of Rayner v. Kinney, 14 Ohio St. 287. The rule that inquiry as to reputation must be confined exclusively to general good or bad character, is not sound. Indeed, it may be questioned whether the learned judge, who wrote the opinion in that case, contemplated that the rule, as announced, should cover all cases where character is in issue. If he did, the opinion contains evidence of, and authority for, a broader rule. He says, “ under the general issue, the defendant, in mitigation of damages, may prove that the plaintiff, at the time of speaking the words, was under a general suspicion of having been guilty of the charge imputed to him.” This we think the true rule, and renders the general doctrine of the case untenable.

Plaintiff’s character for chastity was in issue under the general denial. It was the object of defendant’s assault. Injury to it was the gravamen of complaint. The action was brought for its vindication. She claims, in her petition, that prior to the speaking of the slanderous words, by defendant, “ she sustained a good name and character among her neighbor’s and acquaintances for chastity, moral worth, and integrity,” and was never suspected of “ unchaste conduct,” etc.

Touching this point, 1 Greenleaf on Evidence, § 55, .states the modern rule to be, “ But it seems that the character of the party, in regard to any particular trait, is not in issue, unless it be the trait which is involved in the matter charged against him.” Taylor, in his work on evidence, vol. 1, § 334, p. 365, states the rule thus: “ It seems, however, that here, as in other cases where witnesses to ■character are admitted, evidence must be confined to the particular trait which is attacked in the alleged libel; and, as to this, it can only furnish proof of general reputation, and must, by no means, condescend to particular acts of bad conduct.” Foulkard’s Starkie on Slander, etc., § 714; Eoulkard’s Law of Slander, etc. (4th ed.) 539; Bell v. Parke, 11 Irish Com. Law, 413-420; Earl of Leicester v. Walter, 2 Camp. 251; Turner v. Foxall, 2 Cranch C. C. 324; - v. Moor, 1 M. & S. 285.

While we find a conflict of authority on this point, the modern cases are founded on better reason, and clearly admit the competency of general reputation in' regard to the trait of character assailed. An examination of the cases we think would clearly show, that the apparent conflict in the decisions, arises principally from the nature of the* pleadings, or single nature of the accusation. But we-will not pursue this branch of investigation, because we-think, upon principle, a general reputation of want of good character in the very particular in which it has been assailed,, is competent evidence in mitigation of damages.

The plaintiff seeks a compensation for a loss of character,, not her reputation for truth, integrity, sobriety, or industry,, but in respect to her reputation for chastity. That alonéis claimed to have been soiled. That is put in issue. The-law presumed it good, and therefore to her valuable. If her character for chastity has sustained no damage, she is-entitled to but little or no compensation. If her general reputation for chastity was notoriously bad when the alleged slanderous words were spoken, could it be that the pecuniary injury sustained by her, from the wrongful act’ of defendant, is as great as it would have been if her general reputation for chastity had been untarnished?

That evidence of general reputation, as a woman, is admissible in mitigation of damages is not disputed. Such was the theory of the court below, but it went further, and’ ruled that evidence of the general reputation for chastity was not admissible. It seems to us the reason is much stronger for allowing evidence affecting her general character in respect to the trait that has been assailed. Reputation is complex — made up of many things. A woman may possess many virtues, consequently a fair, or even good general reputation as a woman, and yet be notorious-for some one vice. If the defamer assails all her virtues she sustains an injury, if only her other vice is assailed theinjiiry is less.

Plaintiff asserts in her complaint that her standing in society, as a virtuous woman, has been assaulted and damaged,, and that her character for chastity was, prior thereto, irreproachable. It is the element of chastity in her character which she claims has been damaged. Its value then becomes the proper subject of inquiry — not her truthfulness,, hér integrity, her sobriety, her industry — but her chastity alone. If that is worthless in the general market of public estimation, it would seem strange indeed, if defendant might not show, in mitigation of damages, that it was generally reputed of little value.

The court erred in refusing to allow defendant to prove plaintiff’s general reputation for chastity was. bad.

IY. We think the court ruled correctly in refusing to allow a cross-examination of witness Carnes on the subject proposed by defendant. The witness was examined by plaintiff as to her general reputation alone. If the character of plaintiff’s associates could be used in any aspect of the case, it was evidence in chief, and not admissible on cross-examination. Facts not admissible in chief, as a defense, were sought to be introduced indirectly, under the guise of impeaching the witness. We know of no rule of evidence that would authorize the proposed cross-examination of the witness.

Reversed and remanded to the court of common pleas for further proceedings.

Wright, J., dissented from the second proposition of the syllabus.  