McCue v. Ferguson

The opinion of the court was delivered, March 17th 1873, by Sharswood, J. It was certainly settled in Rangier v. Hummel, 1 Wright 133, that in an action of slander it is not competent to prove the averment that the words were “ spoken of and concerning the plaintiff,” and thus aid the innuendo by the opinion of a witness that the defendant meant the plaintiff in the word used. The authorities relied upon were Van Vechten v. Hopkins, 5 Johns. 235; Gibson v. Williams, 4 Wend. 320; and Snell v. Snow, 13 Metcalf 278. Later cases are in conflict with these decisions : Miller v. Butler, 6 Cushing 71; McLaughlin v. Russell, 17 Ohio 475; Smawley v. Stark, 9 Ind. 388; Tompkins v. Weisse, 1 Sand. 458. We do not mean, however, to cast any doubt upon Rangler v. Hummel, but to adhere to and re-affirm it. We think that there is a plain distinction to be drawn between that and all the other cases cited and the one presented on this record. They were all cases of the slander of an absent person. The opinion of a witness could only be as to the meaning of the words used, of which, when all. the facts and circumstances were given in evidence, the jury would be as good judges as any witness. But when the words are in the second person, addressed to some one present, the question to whom addressed is a question of fact, necessarily dependent upon opinion more or less distinct. If the name of the person addressed is not used the bystanders can only have an opinion as to who was meant to be addressed, and this may depend upon many things in the voice, eyes, and gestures, of the utterer. Two witnesses for the plaintiff below testified that the words were addressed to her, but however positive was their testimony, it was after all, nothing but their opinion. It was not an opinion necessarily formed from the interpretation of the words used. The question should have been permitted to be put in the first instance, and if, upon the cross-examination, it had appeared [336] that the opinion was grounded merely on the words used, the jury should then have been instructed to disregard it. We think, also, that there was error in the admission, in evidence of the plea in justification. When offered originally, the learned judge was perfectly right in rejecting it — for having been withdrawn by leave of the court it was no longer any part of the record — it was as though it had never been entered. Nor did McCue say anything which opened the way for it in rebuttal. When he testified that he never said the assertion was true about the plaintiff, it could not be tortured to refer to the formal plea put in by his attorney. He might have been asked, whether he had ever instructed his counsel to plead in justification, and if he denied-it, perhaps it might have been contradicted by evidence of ■ such instruction. But the plea itself was inadmissible to prove any such instruction. Judgment reversed and venire facias de novo awarded.