Smith v. Gaffard

WALKER, J. There was no error in the exclusion by the court of the evidence of the two witnesses, Matthews and Perry, as to the sense in which they understood the words of the defendant, when taken in connection with certain reports. There is a class of cases, which this court has defined in Robinson v. Drummond, 24 Ala. Rep. 174, where it is permissible to prove the sense in which the witnesses understood the words spoken.—Briggs v. Byrd,, 11 Iredell’s Law, 553; S. C., 12 ib. 377 ; Sasser v. Rouse, 13 ib. 142; Snell v. Snow, 13 Metc. 278 ; Morgan v. Livingston, 2 Rich. 573 ; Gibson v. Williams, 4 Wend. 320; Beardsley v. Maynard, ib. 336; S. C., 7 ib. 560. If the words proved by the two witnesses bring this within that class of eases, (a point which we do not consider,) nevertheless the evidence was properly excluded, because there was no corresponding averment in the declaration. The words, as averred in the declaration, are innocent. The corresponding words, as proved, are, per se, innocent. The plaintiff cannot be permitted to convert into slander by proof words which, as stated in the declaration, are not actionable. If she could, she might recover upon proof without pleading.—Robinson v. Drummond, supra ; Kirksey v. Pike,, 29 Ala. 206. [2.] The defendant showed by the testimony of his brothei’, David Gaffard, that there had been between them only one conversation in relation to the plaintiff, prior to the time when the defendant’s admission of what he had said to that brother was proved by Matthews and Perry to have been made. The defendant offered to prove what he did say of the plaintiff in that conversation. After the [173] ruling of the court in favor of the admissibility, and an exception by the plaintiff, the witness stated, that the -defendant said: “ Mrs. Hawkins had told him there was something pretty bad the matter with Caroline Smith; and that he understood the defendant to mean, the plaintiff was very sick, and nothing more.” To this evidence the plaintiff objected, and, the objection being overruled, excepted. 'The objection was to the entire evidence. There was no separate objection to the statement by the witness of his understanding as to the meaning of the plaintiff*. There was, therefore, no error in overruling- the objection to the evidence, if it was admissible so far as it contained the statement -of what the defendant said to the witness. Thus far the proof made corresponded with the evidence offered, and the same question is raised by overruling the objection to the evidence proposed, and by overruling the objection to the proof made. By the evidence before the court it was shown, prima facie, that the conversation, to which the admission proved by Matthews and Perry referred, and the conversation as to which David Gaffard testified, were the same. This was apparent because there had been but one conversation ; and it was a fair inference from the testimony, that the conversation admitted by the defendant to the plaintiff’s witnesses, and that proved by the defendant’s brother, occurred in June, 1856. The argument of plaintiff’s counsel against the identity, of the conversations is based upon a misapprehension of the testimony. It does not appear that the conversations occurred at different places. The plaintiff’s testimony conduced to show, that the conversation occurred, (not at David Gaffard’s mill,) but on an occasion when the defendant went to that mill. The testimony of David Gaffard is, that the conversation was had at his mother’s house, about a mile from the mill, which was several miles from the defendant’s residence. The conversation may have occurred when the defendant went to his brother’s mill, and yet may have been at his mother’s house a mile from the mill. The testimony is, therefore, reconcilable with, and does not overturn, the [174] prima-facie case in favor of the identity of the conversations. The court, acting upon the prima-facie case apparent-before it, iound that the plaintiff had made proof of a certain conversation, and that the defendant proposed to-prove by a different witness what was said-in the same-conversation. The proof thus proposed was clearly admissible. The circumstances under which the defendant stated what he had said to his brother, and the qualification and explanation accompanying the admission, would prevent the mere fact, that he repeated in the admission the words previously said to his brother, from availing any profitable purpose; but the admission proved opened the door for comment upon what had been said to David G-affard, as evidence of malice, if not of slander. The defendant, being thus placed in a situation to be affected; by the conversation with David Gaffard, was properly allowed to give evidence of what was said in that conversation. [3.] The bill of exceptions does not disclose whether the testimony of David Gaffard was admitted before or after the exclusion of the testimony of Matthews and Perry as to their understanding of what the defendant had said; and if it were necessary to the affirmance of the judgment, we would make the intendment consistent with the correctness of the ruling of the court, and regard the testimony of Gaflard as given in while that of Matthews and Perry was before the court. [4.] The court did not err in overruling the motion to-exclude that portion of Mary Elizabeth Gaffiird’s answer to the third interrogatory, in which she said: “ I have no recollection at this time of the plaintiff’s name being mentioned in the conversation we had on the 3d and 4th of July, 1856.” The objection was that the testimony was not responsive to the interrogatory. The interrogatory was as follows: “ If there was a conversation on the 3d and 4th of July, 1856, relative to the plaintiff, state how it occurred, and what it was, and who were present.” It is true there might possibly have been a conversation relative to the plaintiff, without mention of her name. [175] But the tendency of the answer was very directly to negative the fact that any conversation on the subject occurred. The answer was, therefore, responsive to the interrogatory, although not so full and satisfactory as might have been desired. [5.] There was no error in rendering the judgment for costs against the plaintiff’s “ next friend.” The law is so settled in Perryman v. Burgster, 6 Porter, 99; see, also, 1 Tidd’s Practice, 72. The judgment of the circuit court is affirmed.