Rhodes v. Naglee

Thornton, J., concurring.

I concur in the foregoing opinion, except as to that portion of it which relates to the admissibility of the evidence that the plaintiff was a married man, and had a family of two or more children. I am of opinion that the court erred in letting this evidence go to the jury. Any evidence in regard to the plaintiff’s condition, confined to himself personally, was admissible, but the testimony admitted went further than this. It was in relation to other persons. Such testimony was not admissible on the question of malice. The fact that plaintiff had a wife or children, or both, was not in the mind of the defendant when he spoke the words alleged. There is no evidence that defendant knew that this was the fact. Nor was such evidence admissible on the issue of the damage. The damage to plaintiff was the same, whether he had a family or not. Such evidence might have an influence on a jury, which ought to be avoided. For these reasons I concur that the judgment should be reversed, and the cause remanded for a new trial.