
    HARRISON COUNTY,
    OCTOBER TERM, 1832.
    JUDGES-HITCHCOCK AND WRIGHT.
    STEVENS AND WIFE v. HANDLY.
    Slander — vulgar words, not of the gist of the action, should he omitted— malice — mitigating circumstances — compensatory damages — exemplary damages — standing of the parties.
    Vulgar words not essential to the right of action, should not be inserted in the-declaration for slander; they are only proven to show the degree of malice-which actuated the defendant, and in aggravating damages.
    The circumstances of provocation, misapprehension of facts, or which show heat and passion, or that the defendant was non compos, are to be proven by the defendant. Malice is an inference of law from the false speaking of the words.
    Where the slander was uttered under circumstances of mere mitigation, without justification, the damages should be compensatory which are such as will make the plaintiff whole, and cover his expenses and loss of time in thelitigátion.
    Where the slander is without mitigation, exemplary damages should be given, showing how the jury estimate good character. &c. ..
    In assessing damages, the jury should consider the standing of the parties in society, and the ability of the defendant to respond.
    Slander. The declaration charged the speaking of the following: words, of the plaintiff’s wife: “ She is a whore — she is a damned whore — Ida Iiandly has gone to Stevens’, and they keep a damned, whore house — Stevens’ wife and daughter keep a bawdy house, and 122] *Stevens’ wife is a whore — she is an infernal whore — she is-an hell-fired whore — she would come to my house and get into bed between me'and my wife — Stevens’ wife, and all the Delanys are-.damned whores — I know every inch of old Bets Stevens, but old David Stevens does not know it yet- — -I know her as well as he does — she-is a strumpet — she is a whoring woman — she is a lewd woman— Stevens’ wife is a whore.” Plea, not guilty and issue.
    Several witnesses were examined, who proved the speaking of most of the words, at several times, and that the plaintiff’s character was-good.
    On the part of the defence, witnesses were introduced to impeach the character of the plaintiff, and of some of the witnesses, which, failed.
    
      Dewey and Beebe, for the plaintiff, argued to the jury.
    
      Stokely and Goodenow, for the defendant.
   WRIGHT, J.

to the jury: The actionable words relied upon in this case, are, “ She is a whore.” The other indecent and vulgar words-'proven were only material as showing the temper of mindin' which the slander was published, and to establish the degree of malice. It would have been better to have left them out of the declaration. It is not disputed but that the words are proven; but it is argued that they were spoken under circumstances of provocation, and misapprehension of facts, which mitigate the damages. Malice is presumed from the false speaking of the words, and it is incumbent on the defendant, by his evidence, to negative this presumption of law. If he shall have proven to you, that the words complained of were provoJced by Mrs. Stevens, or were words of mere heat and passion, uttered under a mistaken apprehension of facts, or were the offspring of a mind non compos, or were spoken of a person of notoriously bad character; such proof will go far to excuse the defendant, and may mitigate and reduce the damages to a mere nominal sum. But if the words were uttered under circumstances merely mitigating, without justification or excuse, the damages should be compensatory; that they should be sufficient to cover all the expenses and costs of the plaintiffs in litigating the matter, including their loss of time — such as will make them whole. Where words are spoken without justification, excuse, or other mitigating circumstances, the damages should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it. In such a case, the jury will not be apt to err in giving too high damages. In estimating damages, *it is always proper to take into consideration the standing of [123 the parties to the suit, and the ability of the defendant to respond.

Verdict for the plaintiffs for $523, and judgment.

[Punitive damages when there is express malice — counsel fees as part of damages; Roberts v. Mason, 10 O. S. 277, 280, 282; Finney v. Smith, 31 O. S. 529, 532, 534, 535.

Defendant’s pecuniary ability considered in estimating damages, cited with query; Alpin v. Morton, 21 O. S. 536, 545.]  