White v. Newcomb

Follett, J.: This action was begun January 4, 1896, to recover damages for an alleged slander uttered on two occasions — September 1," 1895, and December 18,1895—imputing unchastity to the plaintiff. The complaint contains two 'counts. In the first it is alleged that the slander was uttered December IS, 1895, and in the second it is alleged that the slander was also uttered September 1, 1895. I concur in the opinion of the presiding justice that Stafford v. The Morning Journal Association (142 N. Y. 598) sustains the ruling of the trial court, permitting the plaintiff to give evidence, as part of her case, that by the speech of people her reputation was good. However, I think two errors were committed, which require a reversal of the judgment and order. Henry L. Cash was called as a witness for the plaintiff, and tes — 398 — tified : “I never told Walker of 38 Caroline street that Miss White (plaintiff) had been — or you had seen or known of her being in the family way". Q. About seeing Miss White and Kennedy kissing each.other? [Objected as incompetent, immaterial and not proper rebuttal. Overruled and exception.) A. No, sir.” The only excuse for receiving this evidence arose out of the cross-examination of the defendant. He testified: “ I went tó a young man by the name, of Walker, living on Caroline street. • * * *” The conversation between the defendant and Walker was then detailed by the defendant upon his cross-examination. In describing this conversation he testified: “ I says, 1 You (Walker) stated to me once certain things in connection with Miss White and Mr. Kennedy;’ I says, ‘ Was that so?’ ‘Well,’.lie says, ‘it wasn’t exactly so ? ’ He says, ‘ A gentleman by the name of Cash said he saw certain things.’ At this time I was trying to get evidence, and he denied that he knew personally certain things that I was asking him. I was trying to get Cash. That Kennedy had been seen kissing Miss White in the office. He said he had not seen it, but Cash had.” This conversation occurred after this action was begun and while the defendant was searching for evidence. No reference to this transaction was made by the defendant on his direct examination. The conversation was new matter, called out by the plaintiff on the cross-examination of the defendant. It was incompetent to permit Cash to testify whether he had or had not told Walker anything about seeing Miss White ahd Kennedy kissing each other. It was a conversation wholly between third parties, and, as before stated, no evidence had been given of any such conversation,, except as it was called out by the'plaintiff on the cross-examination of the defendant. It raised an issue not in the ¿ase, and which was likely to prejudice the jury in such an action. On One occasion, Frank Graham, accompanied by two women, called on defendant at his residence and inquired about the reputation of the plaintiff. He was a witness in behalf of the plaintiff, and testified that defendant said in that interview that the plaintiff was unchaste. The defendant in his testimony detailed the conversation had with Graham and his companions, and said that he finally said to them, “ If you want to know more about it, inquire of John Burk-hard, next door tó Kennedy.” — 399 — On another occasion one Albert G. Mack called, on the defend-, ant and inquired about the reputation of this plaintiff. He was also sworn as a witness for the plaintiff, and testified that the defendant told him that it was reputed that the plaintiff was unchaste. The defendant on his direct examination described the interview, and testified that he told Mack “ if he wanted further information that he could go to John Burkhard, who lived next door to them.” Burkhard was not sworn as a witness. The plaintiff was called in rebuttal and testified, over the defendant’s objection and exception, that there was trouble at one time between Henry R. Kennedy and John Burkhard. “Mr. Raines (plaintiff’s attorney) proposed to show the relations between Burkhard and this lady, and the facts upon which it -is claimed by the plaintiff he was bitterly hostile to this lady (the plaintiff).” This was objected to by the defendant as incompetent, immaterial and not in rebuttal. The objection was overruled and an exception was taken. The plaintiff then continued her testimony, covering more than a page, describing a transaction tending to show that Burkhard was hostile to her, and -was permitted to testify to a conversation which occurred between herself and Burkhard, all of which was over the defendant’s objection. This evidence was utterly immaterial, and was calculated to prejudice the defendant. For these errors the judgment and order should be reversed. Again, the plaintiff’s case has a most suspicious aspect. As before stated, but two utterances of the alleged slanderous words are set forth in the complaint. To establish the first cause of action she called Albert G.- Mack, who testified that he had done detective work, and also that, in the latter part of November or the first part December, 18.95, he called on the defendant in the evening at his residence. Previous to that interview the defendant and Mack were strangers. _ Mack testified that he stated to the defendant that he called for the purpose of inquiring what there was about the shoe business, in which the defendant was engaged ; that witness’ wife had some money and thought of going in business with the plaintiff, who was then engaged in the shoe business in a small way. He testified that he inquired in respect to the character of the plaintiff, and that the defendant said that she was not a proper person for a lady to associate with; that she had been with child and had got rid — 400 — of it. The witness further testified that he knew the plaintiff and knew Henry E. Kennedy. He testified that he did not visit the defendant at the suggestion of the plaintiff, her counsel or Henry E. Kennedy, but he testified that he did visit John Burkhard at the suggestion of the plaintiff’s counsel, who gave him two or three questions to ask Burkhard about this case, and that he went with a view of being a witness in this case ; that after he had interviewed Burkhard and asked the questions which the plaintiff’s attorney told him to ask, he reported the result to him. It is unnecessary to recite the description which this witness gives of his conduct in this case, but I think it cannot be read without coming to the conclusion that he was employed as a detective to search for evidence for the plaintiff, and that he went to the defendant under the guise of desiring to know for his personal interest in respect to the character of this plaintiff, and that he was successful in his deceitful attempt to secure evidence. Again, Frank Graham, a witness called by the plaintiff, testified that in December, 1895, he called on the defendant at his residence; that with him were two women, a Mrs. Green, who he will not testify was not introduced to defendant as Miss Brown, and the other, a Miss Graham, whom he introduced as his cousin. This witness testified that he and the defendant were strangers. He testified that he told the defendant that his cousin was thinking* of investing money in the plaintiff’s business, and that he asked the defendant in respect to her business ability and general honesty. The defendant asked him his reasons for inquiring, and he told him that his cousin was desirous of investing a certain amount in business with Miss White. He testified that the defendant told him that she was not honest; that she had stolen, purloined or used his patterns, and that it had been reported that she at one time had left town to get rid of a child, the father of which was supposed to be Henry E. Kennedy. He also testified that Mrs. Grfeen, who was with him, was a hairdresser in the city, whom he had known some time, but he would not state that she was not introduced on the occasion of that interview as Miss Brown. Neither Mrs. Green, alias Miss Brown, nor the woman who was introduced as Miss Graham, was called as a ■witness.- He further testified that Mr. Kennedy sent him there, and that Kennedy told him where Newcomb lived. I think no one — 401 — can read the testimony of this 'witness without being convinced that he and his companions were detectives, acting in the interest of the plaintiff. In case Mack and Graham were acting as detectives in the interest of the plaintiff, for the purpose of inducing the defendant to make statements derogatory of the plaintiff’s character, and he was induced to do it by the false representations of the detectives that they sought the information for the protection of their own interests, the plaintiff, being bound by the act's of her, agents, cannot recover damages for the words which she induced, through her detectives, the defendant to utter. In addition to this, William H. Lew, a witness called by the defendant, testified that the plaintiff asked him to go to the defendant and get him to say something which she could use as evidence in the action she was about to bring against him for defamation of character, and that he declined to do so.' Afterwards the plaintiff was recalled and admitted that she did ask Mr. Lew to see the defendant and find out exactly what he was saying about her. The court, in instructing the jury, stated correctly that if they found that the plaintiff, by means of detectives, induced the defendant to make the statements, under false pretenses, they might render a verdict on the first count 'for the defendant, but the jury rendered a verdict for $2,500 damages, which must have been the result of prejudice or of some other motive not justified by the evidence. The evidence to sustain the second count was given by Mrs. Agnes Wallace, who, at the time of this trial, was an employee of the plaintiff. This witness had formerly been employed by the defendant in manufacturing shoes, and was there at the same time that the plaintiff was employed by him as a bookkeeper. She testified that the defendant said to her in September, 1895, that the plaintiff had got rid of an illegitimate child. This witness and the defendant had had trouble, as she testified, and she left his service, though not discharged, and, after leaving, she worked more or less for the plaintiff. The defendant denied that he made any such statement to this witness. TJpon this testimony the jury rendered a verdict for $2,500 damages, which, under all the testimony in the case, if any cause of action exists, is altogether excessive. — 402 — For the errors referred to, and because the verdict is for excessive damages, the judgment and order should be reversed and a new trial granted, with costs to the appellant-to abide the event. Adams, J., concurred in the opinion; Hardin, P. J., and Green, J., concurred on the ground that the damages were excessive; . Ward, J., dissented.