Carpenter v. Willey

THOMPSON, J. The testimony of thewitnesses,Fayand Ames, was clearly admissible. It tended to prove an admission by the defendant of the speaking by him of the slanderous words charged in the declaration. Fay’s testimony also tended to prove an attempt by the defendant to manufacture evidence with which to impeach the plaintiff’s character. The fact that Fay’s testimony was not responsive to the questions put to him did not render it inadmissible for that reason. The witness Lord, improved by the plaintiff, was a material witness, as his testimony tended to prove the speaking by the defendant of the slanderous words alleged in the declaration to have been spoken in August, 1888. The testimony of plaintiff’s witness, Daniel Johnson, tended to prove an attempt by the defendant to prevent the attendance of Lord as a witness in behalf of the plaintiff. Such an attempt is admissible against the party making it, as evidence tending to confirm the witness whose testimony is thus sought to be suppressed. Kirkaldie v. Paige, 17 Vt. 256- The inquiry of this witness by. the defendant as to plaintiff’s reputation for chastity did not relate to any matter inquired about in his examination-in-chief, and was no part of the legitimate and proper cross-examination. It related solely to matter of defence. It was wholly within the discretion of the trial court to permit the defendant to make the inquiry at that stage of the case, or to require him to defer it until he took the case in defence. Carey v. Hart, 63 Vt. 424; Greenl. Ev., §§ 445, 447. The defendant was [175] distinctly informed by the presiding judge that he could make the inquiry when he came to put in his defence. The court properly excluded the evidence offered by the defendant to show that plaintiff’s husband had charged her with the same things as those which were the gist of the defendant’s slanderous utterances concerning her. The evidence offered did not tend to prove that the alleged accusation of the husband, if ever made, was made prior to the speaking of the slanderous words by the defendant. The defendant put to his witness, George Johnson, this inquiry in regard to the plaintiff: “Did you hear in the summer of 1888, some particular things, some stories about her?” The court excluded the question, to which ruling the defendant excepted. It is incumbent upon the party excepting to the rejection of evidence to have the record show that the ruling was prejudicial to him. The general rule is that to reserve an available exception to the exclusion of the testimony of a witness a proper question must be asked, and upon objection thereto an offer must be made, stating the testimony which the witness will give if permitted to answer the question, and an exception must be taken to the exclusion of the evidence as shown by the question and offer. Kern v. Bridwell, 119 Ind. 226, (12 Am. St. R. 409) ; Dreher v. Fitchburg, 22 Wis. 675, (99 Am. Dec. 91) ; Carpenter v. Corinth, 58 Vt. 214; Roach v. Caldbeck, 64 Vt. 593, (24 Atl. R. 989). In Carpenter v. Corinth, sufra, exception was taken by the plaintiff to the permitting certain questions to be put to witnesses, but it did not appear what answers were given, if any. In disposing of the exception the court said: “It is incumbent on the plaintiff to show that the answers were prejudicial to him The court cannot presume that they were. * * * The questions were not evidence, and it was not error to allow them to be put.” The rule above stated is simply the converse of this holding. To the same effect are Ainsworth v. Hutchins, 52 Vt. 556, [176] and Smith v. Ins. Co., 60 Vt. 682. There was no offer in connection with the ruling of the court excluding the question put to Johnson to prove any fact by him material to any issue in the case, nor does the record show that he would have given any testimony in response to the question. Hence the defendant’s exception to the exclusion of this question cannot avail him. The defendant’s witness, Julia Udall, having been asked by him the question whether the treatment of the plaintiff by her neighbors had been different since the alleged slander from what it was before, the court refused to permit the witness to answer the question, to which the defendant excepted. It does not appear that this witness had any knowledge upon that subject, nor was there any offer by the defendant to prove any fact by her bearing upon that question. Hence, for-the reason above stated, this exception cannot avail the defendant. The defendant introduced evidence tending to prove that at the time of the speaking of the slanderous words by him the reputation of the plaintiff as to chastity was bad, and that for a long time prior thereto it had been. It was competent for the plaintiff to meet this attack upon her character by evidence showing that in this respect her reputation was good during the time in question. A fair construction of the exceptions shows that this is all the plaintiff was permitted to do in rebuttal on this phase of the case. The fact that the slanderous words were spoken by the defendant at a camp-meeting, to one Lord, who had formerly been the pastor of the church of which the plaintiff and the defendant were members, and in answer to inquiries by Lord, does not make such speaking a privileged communication. So far as appears there was then no relation subsisting between Lord and the plaintiff, nor between him and the defendant, which entitled him, as a matter of public, social, or moral duty, to inquire into the character of the [177] plaintiff, or which would protect the defendant in making the slanderous charges against her, although made without malice, and in the honest belief that they were true. The interview between Lord and the defendant was simply the casual meeting of two old acquaintances, during which they proceeded to discuss the reputation of the plaintiff for chastity. The case is barren of facts necessary to bring it within the doctrine of privileged communications, by a minister of the gospel, or to him, as discussed and laid down in Shurtleff v. Stevens, 51 Vt. 501; 2 Green. Ev., § 421, n. 1. Judgment affirmed. Willey v. Carpenter was a petition for a new trial in the foregoing case, and was heard with it. The alleged ground for a new trial is that after the case had been submitted to the jury, and they had retired to the jury room to consider it, they were misinformed by their foreman in respect to the law governing the manner in which they should arrive at their verdict, and that in consequence of being thus misinformed, they returned a verdict for the plaintiff for much larger damages than they otherwise would have done. In support of his petition the defendant offered in evidence the affidavits of several of the jurors. This case does not disclose anything which makes it an exception to the general rule of law in this State, that affidavits of jurors as to what occurred in the jury room while they were considering the case will not be received as evidence to impeach or set aside their verdict. Sheldon v. Perkins, 37 Vt. 550; Tarbell v. Tarbell, 60 Vt. 494. While it is conceivable that a case might arise which would call for a relaxation of this rule, there is nothing in the case at bar that calls for a consideration of such a contingency. The only admissible evidence offered in support of the petition is the affidavit of Miller, the officer who had charge [178] of the jury. It fails to show that there was any agreement among the jurors that the damages should be ascertained or determined by any particular method, and which was followed by them in making up their verdict, or that any juror was misled by any statement of the foreman, or of any one else, in regard to the law which should govern their action in assessing damages. It is therefore to be presumed that they followed the law on that subject as laid down by the presiding judge in his charge. The evidence failing to sustain the .allegations of the petition, there is no occasion for us to discuss the law which would govern in such a case as is stated in the petition. Petition dismissed with costs to the petitionee.