I concur in the result, but I think the holding of the Court concerning the admissibility of testimony showing or tending to show the alleged falsity of the newspaper article written by plaintiff is erroneous.
Whether a proffered fact raises a collateral issue is to be tested by the rules of relevancy. Applying that rule, it is relevant and proper in actions for assault to show provocation in mitigation of exemplary damages; but such proof is not to be considered in lessening the amount of actual damages.Royer v. Belcher, 100 W. Va. 694, 131 S.E. 556. See Tatnall v.Courtney, VI Houst. (Del.), 434; 1 Jones on Evidence, Fourth Ed., Section 146. In an action to recover damages for an assault, *Page 634 publication of a defamatory article by plaintiff therein may be shown in evidence to establish provocation of defendant, so as to mitigate exemplary damages; but it may not be considered in reduction of actual damages. Marriott v. Williams, 152 Cal. 705,93 P. 875. Publication of false statements derogatory to a person are more provocative of anger than a truthful statement. If the article was false and injured the reputation of defendant, it was a relevant matter to be considered as showing the extent of defendant's provocation. If defendant was incensed, certainly it would tend to show that in the circumstances of this case he was actuated by passion rather than malice, and the jury was entitled to have the benefit of such proof.
Therefore, the proof tendered by defendant as to the falsity of the article written by plaintiff was relevant, raised no collateral issue, and should have been admitted for the purpose only of mitigating the exemplary damages claimed by plaintiff.