Osborn v. Forshee

Graves, J. Forshee having sued Osborn for verbal slander and recovered judgment, the latter complains of several rulings made upon the trial. The ground of action as stated in' the declaration was, that Osborn, “in the hearing of divers persons, falsely and maliciously uttered of and to the plaintiff the following false words: ‘You are an old thief and swore to a lie, and I can prove it by Sunberg; I can prove it by Bunce’s. docket.’ ” The plaintiff having been sworn as a witness in his own behalf, and having testified that Osborn came into the field where he was at work and called him a thief, his counsel read to him the statement in the declaration relative to Bunce’s docket, and then asked him if there was anything said.about ..Bunce’s docket; to which question the.defendant’s counsel objected as leading, suggestive and incompetent, but the court overruled the objection, and the plaintiff' made answer as follows: “He” (the defendant) “said he-could prove it by Bunce’s docket. He said this on the county line and in the field. Bunce was an acting justice of the peace in Monroe county. He said he could prove it by Sunberg.” We think the court erred in permitting the course which was pursued here. By allowing the paragraph in the declaration to be read as an introduction to the-question put to the party, the court in substance permitted the plaintiff’s counsel, under the guise of an examination [211] of the plaintiff himself, to make known to the latter the very facts which the form of the declaration required to be shown, and which his counsel wished to find asserted in and by the answers to be given. We are not aware of any admissible interpretation of the rule, which gives to a trial court a discretionary power to allow in certain cases a pregnant or leading course of examination, by which the practice in this instance could be justified; and we think that the ruling was of such a nature as to be the proper subject of review and correction in this court. The plaintiff was further permitted to show, under objection, that on a trial before one Justice Palmer, the defendant, while being examined as a witness, testified, in answer to a specific question, that he had told Forshee that he had sworn to a lie, and that he, Osborn, could prove it by Bunce’s docket. The admission of this evidence, we think, was improper. While the defendant, in his character of witness in the case referred to, was required to testify to his former declarations to Forshee, he was, for that case, the mouthpiece of the facts which'the law required him to disclose, and not the voluntary repeater of his former sayings, and his statements thus obtained respecting the declarations he had before made to Forshee cannot be turned into admissions to substantiate the allegations of slander in the declaration. His evidence, thus elicited in the case before Palmer, was so far privileged as to preclude the plaintiff below in this case from using it as an admission of the uttering of the slander imputed. The objection to evidence of the defamatory words, on the asserted grounds that the declaration does not allege that they were spoken of, and concerning, the plaintiff, cannot prevail. • The averment is not what the objection assumes it to be. The declaration alleges that the words [212] were uttered of aud to the plaintiff, and consequently repels the ground on which the objection is based. There are two or three questions which, as the record is constituted, we cannot safely or prudently consider, and the remaining points we are not disposed to examine, since they will not be likely to arise on another trial. The judgment below must be reversed with costs, and a new trial ordered. The other Justices concurred.