Pool v. Devers

"WALKER, J. The amendment of the complaint, by striking out the name of Bonham, was certainly permissible under section 2403 of the Code. — Wilkinson v. Moseley, at the present term. 2. "Upon the trial, the plaintiff proved that he was a poor man. The defendant did not, at the time when this evidence was introduced, make any objection, but afterwards moved the court to exclude it. This evidence was illegal. The right of recovery, in an action of slander, cannot be determined, nor can the amount of the recovery be measured, by reference to the pecuniary condition of the plaintiff. That the plaintiff was poor man, was nota legitimate matter for the consideration of the jury, in any point of view. — Adams and Wife v. Adams, 29 Ala. 433; Ware v. Cartledge, 24 Ala. 622. 3. This evidence was illegal upou its face ; it required no reference to any other fact to make its illegality apparent. Upon the authority of Cunningham’s Executor v. Cochran & Estill, 18 Ala. 478, and Davis v. The State, 17 Ala. 415, it is sufficient that the objection to such evidence should be general, and it is not necessary that a specific objection should be made. — Goldsmith, Forcheimer & Co. v. Picard, 27 Ala. 142. 4. As a general rule, “it is the duty of the court, at any stage of a cause, to exclude from the jury illegal proof.”— Bush & Co. v. Jackson, 24 Ala. 273; McCreary, v. Turk, 29 Ala. 244; Pearsall v. McCartney, 28 Ala. 110. The [676] testimony under consideration does not come within any exception to the general rule. 6. We cannot say that the refusal to exclude the illegal evidence, was not injurious to the defendant. It was said in the case of Thomas v. LeGraffenreid, 27 Ala. 658, that “where irrelevant evidence has been admitted, the absence of injury must be very plain, to allow us to sanction the error.” In this case, it not only does not appear that the defendant was not injured by proof of the plaintiff’s poverty, but we can very well conceive that such evidence, in a slander suit, where the jury may give vindictive damages, may have very seriously prejudiced the defendant ; especially, when the court, by overruling a motion to exclude it, has at least seemed to sanction its materiality. 6. To prevent a continuance of the case, the defendant admitted, that an absent witness, if present, would prove a certain material fact. The defendant proposed to prove that the witness had made declarations inconsistent with the proof which it was admitted he would make if present. The court refused to permit the proposed evidence to go to the jury, and in that refusal there was no error. The admission of the evidence would have violated the rule, that a witness cannot be discredited by proof of counter declarations, unless the* witness was previously asked whether he did not make such declarations at a specified time and place. If the defendant was placed in a situation which deprived him of all opportunity to resort to that mode of discrediting the witness, it was the result of his own act in making the admission for the purpose of procuring the trial. He should have taken the result of a deprivation' of such testimony into the account, when determining whether to make the admission or submit to a continuance. 7. The first charge given by the court asserted, in ef-feet, that the plea of justification was an aggravation of the damages, if it was not sustained. This charge was correct, upon well-established principles, and well recognized authorities. — Lea and Wife v. Robertson, 1 St. 138; [677] Rhodes v. Ijams, 7 Ala. 574; Robinson v. Drummond, 24 Ala. 174. 8. In those actions where the damage goes on necessarily, from the nature of the action, increasing after the commencement of the suit, the plaintiff is not restricted in his recovery to the damages alleged in the declaration. Those actions are detinue, debt, ejectment, and the like. In actions of slander, the same principle does not apply. The second charge of the court, therefore, was correct; and, at all events, was not prejudicial to the appellant.— McWhorter v. Standifer, 2 Porter, 519; Bumpass v. Webb, 3 Ala. 109. 9. The third charge amounted to nothing more than the assertion, that where two witnesses are credible, and one testifies positively, the other negatively, the positive testimony is to be preferred. This is true, as a general rule, and we think the charge was free from error. The judgment of the court below is reversed, and the cause remanded.