Justice v. Kirlin

Hanna, J. Kirlin sued Justice for slander, averring that on, &c., at, &c., he was post master, carried on a grocery, — 589 — and worked at Ms trade of shoe and boot making, and was deservedly a person of good name, &c., and that theretofore, a certain amount of money, to wit, $50, of one 'Andrew McDonald had been stolen, &c., by some person or persons, and the defendant well knowing the premises, but ■contriving, &c., did on, &c., at, &c., falsely, &c., speak and utter, of and concerning the said larceny, and of and concerning the plaintiff, the false, &c. Here several sets of words are set forth, some containing charges slanderous in themselves, and some that were not of themselves slanderous, such as, “he is the man that took the money, I know it,” with an inuendo that plaintiff meant, &c. Hiere was a demurrer to the complaint, on the ground that it did not state facts sufficient, wMch was overruled. There was no objection taken to the sets of words separately. The objection urged here to the complaint is, that it does not aver the innocence of the plaintiff of the larceny. We shall not stop to discuss the question of whether such an averment was necessary or not, for it appears to us the allegation that the speaking was false, sufficiently covers the objection made. One Blue had testified that the defendant used the following language in speaking of the money of McDonald that had been stolen. “ Kirlin was the man who took the money, and I know it.” The plaintiff then asked this question of the witness, “what did Justice mean by the language you have stated he made use of?” Answer. “He meant, I suppose, from the way I took it, that Kirlin was the man who stole the money.” Hiere was an objection to the question, &c., overruled. It is now insisted this ruling was wrong. There is no averment in the pleadings, by way of inducement or explanation of the language laid as having been used, other than as herein set forth. As the language here proved to have been spoken, and the corresponding words laid in the complaint do not, per se, convey the meaning the plaintiff would wish to assign to them, a prefatory inducement was necessary to •show that they were actionable. In such case four positive — 590 — allegations would appear to be required: First. The fact of such larceny. Second. A speaking by the defendant, with reference to such larceny. Third. The words spoken. Fourth,. That the defendant meant thereby to impute larceny to the plaintiff in that transaction. As there was no averment that any of the words alleged, or proved to have been used, had a local or provincial meaning, we are of opinion that the speaking of the words, with the circumstances attending the same, should have been detailed to the jury, and let them judge of the meaning. 3 Ex. Rep. 200; Harrison v. Bevington, 8 C. & P. 594; 2 Gr. Ev., § 417. The next witness, one Greene, was asked a very similar question, and permitted to answer in like manner, namely, “what did the bystanders understand Justice to mean by the language you said he used ? The language used was, “ Mr. Kirlin was the man that took the money.” We do not perceive but that the same objections existed to this as to the former ruling. We are not able to see the necessity of the inquiry of either witness, under the circumstances, for the testimony of each, we think, showed that the speaking was in reference to the larceny of the money of McDonald, outside of their answers to the interrogatories. We are of opinion that, under the circumstances, if the proceeding in asking and eliciting answers to said questions and the rulings thereon, were not strictly correct, yet that no injury could thereby have resulted to the defendant. This witness, in detailing the conversation that occurred, stated, that something was said about a one dollar bill, and about Mr. Buddy having got the bill of Kirlin. The plaintiff then asked the witness this question, “Is the Buddy of whom you speak, the same person that was taken up for stealing, two or three weeks ago ? ” Over the obj ection of the defendant the witness was permitted to answer in the affirmative. The answer filed was, 1. Justification, in this, that plaintiff had stolen said $50. 2. Justification, because he had stolen one dollar, and that it was the same, &c. of which defendant spoke. 3. In mitigation that a larceny had been — 591 — committed, and rumors and suspicions had fixed upon plaintiff, &c., whereupon, &c. 4. General denial. It is insisted that the inquiry was intended to convey, to the jury, the impression that Buddy had 'been arrested for the larceny charged to have been committed, and thus ward off from Kirlin the imputations that might be cast upon Mm, by the evidence in reference thereto. So far as the evidence had progressed at the time the question was put, there was nothing implicating either Buddy or Kirlin in said larceny. It is true that it was afterward developed, by the evidence of other witnesses, that a one dollar bill, identified by McDonald as one he had lost, was found in the hands of one Buddy, who, on being apprized of its identity, presented it to Kirlin, on the ground that he had received it of him, and that Kirlin gave him other money for it. The question was therefore premature, except for the mere purpose of identifying the person, and, perhaps, raising an inquiry in the minds of the jury as to his character. It did not necessarily imply that he had been arrested for that larceny. The inquiry was not afterward pursued by either party, to show that he had been arrested, nor was he a witness, nor any evidence of the reason for his not being one. Nevertheless, we can not see that any particular harm could result from the ruling objected to, especially as the defendant, for ought that appears, could have introduced Buddy as a witness, to explain the transaction and show his innocence. One Karneman was then introduced, who was asked a question as to the feelings of the parties towards each other at the time when the words were spoken; and answered, they were unfriendly. This question was then propounded by plaintiff: “What do you know, if any thing, of the defendant having malicious feelings towards plaintiff.” Over defendant’s objection, witness was permitted to answer as follows: “The state of feeling then was not good between them; my judgment is that the defendant was rather maliciously disposed against the plaintiff.” It is objected to the question, that it was in the present tense, had relation to his feelings at the time it was propounded, and was therefore — 592 — objectionable. Without doubt it was open to the objection made, and an answer should not have been allowed. But as the answer was given, when we come to examine it, so far as this objection extends, we do not see any harm that could arise from such answer. The witness, perhaps, keeping in view the previous question, as well as the one then submitted to him, appears to have directed his answer to some previous time, and there was nothing that had preceded this answer, fixing any prior period of time, except that of the speaking of the words, to which the word “then” in the answer must therefore be referred. After the examination of several other witnesses, relative to the feeling between the parties, and various statements of defendant, this question was put, by the plaintiff to Andrew McDonald, a witness: “State the defendant’s position in society, as to being influential or otherwise, in the community where he resided.” Over the objection of defendant, he was permitted to answer: “He was an influential man, still he had a good many enemies.” We can not see any bearing the question had on the issues being tried, unless it might be in reference to the measure of damages. Would it have the effect to influence the jury in assessing- damages; and if yea, Avas it admissible for that purpose ? Certainly an opinion given, or words spoken, by an influential person, Avould have a greater tendency to make a fixed impression, than if spoken by one without influence. It is more than probable, therefore, that such proof did make an impression upon the jury in fixing a standard by Avhich to estimate the damages. We are of opinion the evidence was properly admitted for that puxpose. If the pax-ties were strangers to the jury — and whether or not, they should decide from the evidence before them, and must therefore be informed of the probable extent of the injury to be enabled to estimate the damages. 2 Gr. Ev., § 269, and note. Aaron Buzzard, a witness, stated, on the part of the plaintiff that he Avas at the time of the alleged larceny acting as a clerk in a store, in, &c., and had been requested to keep a look out for a one dollar bill with Jesse Dillon’s name on the back of it; that about a week thereafter Mr. Buddy — 593 — brought in a .bill filling the description, and gave it to him in payment for goods. The bill was presented to the witness and identified as the one returned to Kirlin by Buddy. The plaintiff then ° asked the witness, “ What Buddy said about the bill, and where he got it, when you asked him where he got it, if you' did ask him.” Objected to. AnswerBuddy at first said, when I asked him where he had got the bill, that he got it of John Pede; he afterward said that he got it of Kirlin. He did not appear to be excited. He went out of the store and was gone a few minutes, when he came back and said that he was glad that he had found out where he had got the bill, that he got it of Kirlin, for if he had not, the people would have suspicioned him.” It is urged that this evidence was irrelevant — was mere hearsay. Of course it was not intended by the plaintiff to fix guilt or the suspicion thereof upon himself, but to weaken the force of the testimony which had preceded it in regard to the return of the bank note to the plaintiff by Buddy. The evidence shows that several persons had been commissioned by McDonald to assist in detecting the guilty parties, this witness and defendant among' others. The bank note presented to witness was one of the clues by which the detection was anticipated. Buddy having it in his possession so soon after the larceny, made it incumbent upon him to account for that possession — to rebut any presumption that might arise. We need not discuss the question of whether his statement, of where he obtained it, would be evidence against any third person. We do not understand the purpose to have been to show that Pede was the guilty party; but to show that, when first questioned, Buddy was not so certain, as his acts afterward indicated, that Kirlin was the person from whom he obtained the note, and perhaps to show that he was anxious to avert suspicion from himself. The defendant had shown acts and statements of Buddy in returning the bill to Kirlin. This evidence had a tendency, perhaps but very slight^ to contradict such acts and statements, and was therefore admissible. The last point made is that the damages, five hundred — 594 — dollars, were excessive. It may be true that the acts of the plaintiff, as shown by the evidence, and the question of doubt thrown over his general character for honesty, should have the damages; but still we are not prepared to say, from any thing in the record, but that the jury did weigh these matters in their deliberations and permit them to enter into their verdict. D. D. Pratt and L. B. Sims, for the appellant. We have thus noticed the points made in the brief of counsel. Per Curiam. — The judgment is affirmed, with 3 per cent, damages and costs.