The opinion
PETITION EOR REHEARING.
[Riled March 14, 1889.]
Strahan, J.
A doubt was suggested by the court when this case was first argued, whether or not the words charged in the complaint were actionable per se, and counsel on both sides devoted their time to the consideration of that question. A conclusion was reached adverse to the appellant on that question. The opinion failed to notice some instructions asked by the appellant upon the trial in the court below, which were refused, and exceptions duly taken. On his application a rehearing was allowed for the purpose of enabling the court to further examine those exceptions. The instructions which were refused are as follows:—
“5. If you find from the evidence that the slanderous words alleged in plaintiff’s complaint to have been spoken by defendant were first spoken in substance by witness George A. Dorris, to the defendant, and that what Sladden said, if he said anything at all, was said only to Dorris, and in repetition only of what Dorris had said, and that Sladden did not claim to know, and did not know, the character or reputation of plaintiff, but that Dorris did claim to know her reputation, then there would be no slander on the part of Sladden.
“6. If you find from the evidence that the person to whom the words in the complaint are alleged to have *268 been addressed first assailed the character of plaintiff, and pretended to know what her character was, and that whatever words were used by defendant concerning the character of plaintiff were a repetition in substance of what said person had related to defendant concerning the character of plaintiff, and that whatever words were used by defendant' concerning the character of plaintiff were used upon the condition that said person was relating the truth concerning the character of said plaintiff, then there was no slander used by this defendant, and your verdict must be for the defendant.”
It may be doubted whether or not there was any evidence before the jury that would have justified the giving of these instructions under any view of the law. The defendant himself testified that Mr. Dorris did not say they were prostitutes; the word “prostitute” was not used during the entire conversation. It is true that in another part of his evidence the defendant says that all he said on the occasion in- question which referred to the plaintiff was only repetitions of what Mr. Dorris had said to him. But waiving this question, and assuming that there was some evidence before the jury which tended to prove that what the defendant said at the time was a repetition of the slanderous language used by Mr. Dorris, and the question is presented whether or not such repetition was justifiable. In other words, does the fact that it was a repetition entirely exempt and excuse the person who repeats it from all personal responsibility? Lord Northampton’s Case, 12 Coke, 134, decided in the star-chamber in 1613, seems to give some sanction to the appellant’s claim; but that case has not been generally followed, neither in England nor in this country. More than that, the book containing it is one of questionable authority. (Odgers on Libel and Slander, 162,163.)
But it is believed that the very decided weight of *269 authority in this country is that any person who publishes a slander concerning another is responsible for his act, notwithstanding the words published may be mere repetitions of what the speaker had heard some other person say. (Fowler v. Chichester, 26 Ohio St. 9 ; Kennedy v. McLaughlin, 5 Gray, 3 ; Stevens v. Hartwell, 11 Met. 542 ; Inmann v. Foster, 8 Wend. 602 ; Treat v. Browning, 4 Conn. 408 ; Sans v. Joerries, 14 Wis. 722 ; State v. Buttman, 15 La. Ann. 166 ; Evans v. Smith, 5 T. B. Mon. 364; Fitzgerald v. Stewart, 53 Pa. St. 343; Wolcott v. Hall, 6 Mass. 513 ; Alderman v. French, 1 Pick. 1 ; Bodwell v. Swan, 3 Pick. 376 ; Watson v. Buck, 5 Cow. 499 ; Root v. King, 7 Cow. 613 ; Cole v. Perry, 8 Cow. 213 ; Mapes v. Weeks, 4 Wend. 659 ; Sheahan v. Collins, 20 Ill. 325 ; Dame v. Kennedy , 21 N. H. 318; Smith v. Buckeker, 4 Rawle, 294 ; Freeman v. Price, 2 Bailey, 115 ; Townsend on Slander, secs. 114, 210, and note 3.)
These authorities conclusively show that one who repeats a slander cannot be exonerated on that ground, and therefore it would have been error for the court to have given the instructions asked by the defendant.
A number of authorities hold that the fact may be shown in mitigation of damages. (Hinkle v. Davenport, 38 Iowa, 355 ; Fowler v. Gilbert, 38 Mich. 292 ; Hewitt v. Pioneer Press Co., 23 Minn. 178; Parker v. McQuam, 8 B. Mon. 16 ; Williams v. Greenwade, 3 Dana, 432 .)
But the instructions asked did not present that question, and we are therefore precluded from considering it. In reaching this conclusion, the court has been guided solely by the law, and here properly our duty ends; but we cannot forbear saying that there were some facts and circumstances connected with the case which ought to have entitled the defendant possibly to a more lenient consideration at the hands of the jury than he appears to have received, prominent amongst which is the fact *270 that he did not seek the interview in which the slanderous language is alleged to have been used, and the peculiar circumstances under which that interview occurred, and which ought somewhat to have mitigated the damages. But we are powerless to interfere only for error in law occurring at the trial, and the circumstances adverted to, being entirely matters of fact, were exclusively for the jury, and we cannot interfere.
The judgment of the court must therefore be affirmed.