
    Brown v. Wright.
    In an action of slander, where the plaintiff has introduced evidence to prove the falsity of the charge, and the falsity of the declarations of the defendant as to the circumstances in support of the charge, the defendant is at liberty, in order to rehut the presumption of malice, even under the general issue, to introduce evidence to prove the truth of the charge and the truth of his declarations as to the circumstances on which the charge was made.
    from the District Court of West Feliciana, Stirling, J.
    
      C. Ratliff, for plaintiff.
    
      Brewer and Collins, for defendant.
   The judgment of the court was pronounced by

Smdell, J.

This is an action for slander. The slander alleged in the petition is the having falsely and maliciously asserted in conversations with third persons that the plaintiff had stolen fifty dollars. The defendant pleaded a general denial. There was a verdict in favor of the plaintiff for $5000, being the amount of damages claimed. In refusing an application for a new trial, the district judge stated that if the cause had been submitted to him without a jury he would have assessed the damages at a lower rate, but that he did not consider himself as having authority to disturb a verdict in such a case, unless the amount was beyond all reason; and as this court had power to reduce, he thought it proper to leave the defendant to an appeal, as the shortest and least expensive mode of terminating the litigation.

Two bills of exception were taken at the trial by the defendant. Before reciting them, it is proper to notice certain testimony which was before the jury, and the circumstances under which it was introduced.

The plaintiff had introduced a witness named West, who on his direct examination stated that the defendant, on the day after the money, a fifty dollar bank note, was missed, told him that he, the defendant, believed Brown had stolen it. Upon his cross-examination by the defendant, he testified that he asked the defendant what cause he had for suspecting Brown. He replied, among other things, that when the railroad cars arrived, on the evening of the disappearance of the bank note, he requested Brown to attend in his shop while he received some freight from the cars at the depot. He also stated that on that-evening Brown had stopped at the house of one Lemon, and there ate some honey with his gloves on, and that the stains of the honey were upon the bank note when subsequently found in the road by another person. This cross-examination took place without any objection on the part of the plaintiff. Afterwards, the plaintiff introduced the testimony of Lemon, which was offered, as is mentioned in the statement of facts prepared by the clerk, “for the purpose of showing that the statements made by defendant to the witness West, as drawn out on the cross-examination of the witness, were not true.” A witness was then offered by defendant and rejected; and the first bill of exceptions, which will be presently recited, was then taken. The plaintiff then introduced the testimony of another witness, one Robertson ; it being also noted on the clerk’s statement, “that the object of the testimony of this witness is to prove that the plaintiff Brown was not in the store at the time that the defendant Wright was receiving the goods at the depot, for the purpose of showing that the statement of Wright that he was there at that time and alone, made to the witness West, as stated in said witness’ cross-examination, was not true.” To the admission of Robertson’s testimony the second bill of exceptions was taken. The bills of exception are as follows:

1st. Bill. Be it remembered that on the trial of this cause, after evidence had been offered by the plaintiff to disprove the statements or declarations made by the defendant, as testified to by Wm. T. West, the defendant offered to prove by Wm. West and other witnesses that said statements were true; which testimony was objected to by the plaintiff, on the ground that no justification had been pleaded by defendant, and the objection sustained. Wherefore the defendant reserved this his bill of exceptions, and tendered the same for the signature of the court.

2d Bill. Be it remembered that on the trial of this cause, after the plaintiff had offered evidence to disprove the statements or declarations of the defendant, as testified by the witness W?n. West and other witnesses, that said statements or declarations were true, which evidence was objected to by the plaintiff, and the objection sustained by the court, the plaintiff then offered further to prove by the witness Robertson that said statements or declarations were untrue; to which the defendant objected, on the ground that the court had refused to permit the defendant to substantiate his statements or declarations after they had been attacked by the plaintiff, and that the plaintiff had no right to offer evidence to disprove matters which the defendant was prohibited, under the ruling of the court, to prove or substantiate. Which objections being overruled by the court, the defendant reserved this his bill of exceptions, and tendered the same for the signature of the court.

We think the court erred, and that its ruling may have operated injuriously upon the defendant’s case, and aggravated the estimate of damages made by the jury. If the statements referred to, and which the witness West was permitted to narrate without objection by the plaintiff, were true, the jury might have drawn from that evidence the inference that the defendant had made the charge under the influence of circumstances calculated to awaken his suspicions as to the plaintiff, and not in mere wantonness and malice; and if they drew such inference, it might and probably would have been with them a just reason for mitigating damages. But if, on the other hand, the jury believed from the testimony adduced by the plaintiff, and which the defendant was not permitted to contradict, that the defendants’s statements to West, above referred to, were false, it was a strong reason for inferring wanton and gross malice on the part of the defendant.

We find the following doctrines laid down by a learned author, in treating of the law of evidence in cases of libel and slander: “ In the defence of this action, under the general issue, the defendant may give in evidence any matter tending to deny or disprove any material allegations of the plaintiff: such as the speaking and publishing of the words, the malicious intention, or the injurious consequences resulting from the act complained of. If the plaintiff in proof of malice, relies upon the falsity of the charge, the defendant may rebut the inference by evidence of the truth of the charge, even under the general issue. Greenleaf on Evidence, vol. 2, § 421.

A fortiori, then, if the plaintiff undertakes to show that matters asserted by the defendant, as the grounds for his belief of the truth of the charge, were false, and thus to establish malice, the defendant should be permitted to rebut such testimony, and show the truth of such assertions in order to resist the inference of malice.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and the cause remanded for a new trial according to law; the plaintiff and appellee paying the costs of this appeal.  