Heller v. Howard

McAllister, J. After much consideration of this case, we are of the opinion that the judgment below should be reversed, and a new trial awarded for two reasons, either of which is sufficient to require that result.' The first ground is error in the first two instructions given by the court to the jury, for plaintiff below; the second, error in the admission of testimony for the same party. In order to an understanding of the defect in the instructions, it will be necessary to state that this is one of that kind of cases (at least it was so considered by the plaintiff’s attorney), where the words spoken did not ,_per se, convey the meaning which the plaintiff would and which she has, assigned to them, viz., the imputation that she had feloniously stolen a parasol, and had committed the crime of larceny. It was necessary that the words should receive explanation, by reference to certain extrinsic facts or matters, such as that defendant was a storekeeper, and had had a parasol feloniously stolen from his store two weeks before the time of the speaking of the words set out. Without the averment of such extrinsic facts of a parasol having been so stolen, and a conversation or colloquium in reference thereto, an innuendo assigning such meaning to the words would not make the declaration good, or show a cause of action. Chit. on Pl. * 400; Hawkes v. Hawkes, 8 East, 427; Van Vechten v. Hopkins, 5 Johns. R. 211. It is enough that the pleader, in both counts of the declaration, has averred such extrinsic matters and a colloquium in reference thereto, thus connecting such extrinsic matter and the slanderous words together. It is the settled rule of law that wherever a specific meaning is given to the terms of a libel or oral slander, by connecting it with previous matter, the whole must be proved as being essential to the nature and identity of the charge. 2 Stark. on Ev. Part 1,* 629; 3 Selw. N. P. 1,067; 2 Greenleaf on Ev. § 413; Strader v. Snyder, 67 Ill. 404. If the extrinsic matter is imperatively required to be proved, with its connection with the words spoken, as a whole, in order to support the cause of action, then it is indispensable that such extrinsic matter should be submitted to, and found by the jury to exist as alleged, in order to find a verdict for the plaintiff. The instructions under consideration wholly omit to do so, and were, therefore, fatally erroneous. They were defective under the circumstances of the case, in that they neither of them contained the hypothesis that the words were spoken in the presence and hearing of some third person. It was necessary that they should have been so spoken, in order to constitute a publication, and complete the injury. There was more than one conversation between the parties; but the plaintiff has clearly counted in her declaration, upon the first one alone. How the evidence leaves it extremely doubtful, if any third person heard and understood that conversation in any such sense as is ascribed in-plaintiff’s innuendo. At the last conversation, plaintiff brought a witness, and specially requested defendant to then repeat what he had said in the first. Concede that lie had complied, and repeated the whole or a portion of it; that would have no tendency to show that any third person heard such first conversation at the time it was had; and it will not do to say that the repetition of it in the presence and hearing of the witness who came with plaintiff, constituted of itself such legal injury as to give rise to an action. The repetition was at her special request, and the maxim volenti non fit ingivria, will apply. Lastly, the paper purporting to be a receipted bill of Morgenthau Bros. & Co. for a parasol sold to a Miss Howard, May 17, 1881, and admitted by the court in evidence, against the objection of the defendant, was incompetent, since the parties purporting to have made it were neither parties to the record, parties in interest, or agents of the defendant, but were strangers. The defendant was entitled to have all evidence against him given upon oath and the witnesses subject to cross-examination. Such evidence was res inter alios acta. The general rule is that “ an admission by a stranger can not be received as evidence against any party, for -it may have been made, not because the fact admitted was true, but from motives and under circumstances entirety collateral, or even collusively, and for the very purpose of being offered in evidence”: 1 Starkie on Evidence,* 59; Longnecker v. Hyde, 6 Binney, 1; Cutbush v. Gilbert, 4 Serg. & R. 551; Warner v. Price, 3 Wend. 397; Jacobs v. Putnam, 4 Pick. 108; Spargo v. Brown, 9 Barnw. & Cres. 935; Melody v. The People, 8 Bradwell, 487. For the reasons stated the judgment of the court below must be reversed and the cause remanded. Reversed and remanded.