Doullut v. McManus

The opinion of tho Court was delivered l>y Bekjiddez, C, J. This is an action in damages. The plaintiff charges that, on April 1, 1884, in this city, at No. 11 Noith Front street, the defendant did then and there publicly, falsely and maliciously slander, defame and abuse him, calling him a thief, a ■fraud, a son of a hitch, a liar, a puppy, using other abusive and defamatory language in the presence and hearing of many other persons; that this conduct of defendant was unprovoked and unjustifiable, and that he, plaintiff, was thereby injured in his feelings and reputation, standing and business, in over five thousand dollars, which he is entitled to recover as real and vindictive damages; which $5000 he claims. Tho defendant filed no exception, but pleaded the general issue. On the day of tiial, when plaintiff offered evidence in support of his averments, counsel for defendant objected on the ground that tho allegations disclosed no causo of action for the damages claimed; that no allegation of charges, actionable in themselves, had been made, and that no specific damages have been set forth and detailed under which plaintiff could recover. The court ruled that the objection, as far as it goes to the want of specification of tho damage arising from different causes being combined together, are too general properly to put defendant on his guard or to justify tho admission of evidence in support. From a judgment of non suit, plaintiff appeals. The objections to the admissibility of the evidence are twofold : 1st. No cause of action. 2d. No specification of damages said to have been sustained. The appellee contends that tho exclusion of the evidence is justified ■on those two grounds. I. The objection that tho petition discloses no cause of action is simply that tho averments, if proved, would not warrant the judgment sought. The petition contains a clear statement of tho time, place and circumstances of tho occurrence. Tt specifies the words used. It charges malice, want of provocation, and absence of all justification. It values •the damages, real and vindictive, at a round sum, and prays for corresponding relief. [802] It is clearly sufficient to place tile defendant in possession of the nature of the facts proposed to he proved and to enable him to prepare his defense. It is manifest that, if on the trial, the plaintiff supports his allegations by legal proof, he will he entitled to a judgment. C. P. 172; 4 N. S. 280; 3 L. 290; 3 Ann. 70; 23 Ann. 280; 3 L. 207; 2 R. 365 ; 5 R. 116 ; 8 R. 51; 16 L. 389. II. The objection that the claim for specific damages has not been set forth and detailed under which plaintiff can recover, is likewise unfounded. That omission could not justify the exclusion of the evidence. It is well settled that vagueness, want of precision, or generality in the averments of a petition, should be taken advantage of by exception, which should be filed in limine before answer to the merits, unless the opposite party had therefrom no sufficient notice of the nature of the demand and would he surprised. The object of pleading is to notify the adverse party so that he may be prepared to rebut. He cauuot, for the lack of more explicit pleadings, exclude pertinent evidence, of whose existence and intended introduction he was previously aware. It is also to serve as record evidence of matters once decided, so as to bar their future investigation. 6 M. 649 ; 4 N. S. 277 ; 7 N. S. 354; 17 L. 238; 5 Ann. 531,673; 9 Ann. 119,254; 10 Ann. 528; J2 Ann. 795; 23 Ann. 676. The rule is different in cases of irrelevant or impertinent averments. The defendant there may either except, in order to have them stricken out, f-liat he may know precisely what he may have to rebut on the trial; or he may wait till the plaintiff offers evidence, and then object. Rut this rule docs not. extend to cases of lack of more explicit pleadings, where sufficient averments are made to put defendant on his guard and to justify a judgment on legal proof. 20 Ann. 193; 21 Ann. 273. It is clear, in the instant case, that the defendant was sufficiently informed of the essential facts on which plaintiff relies to claim damages from him. He could plead surprise to no pertinent fact proved to establish the averments of the petition. It is likewise positive that a final judgment rendered on the merits of this controversy, in favor of either of the litigants, will constitute res judicata to any new suit bronght on averments similar to those contained in the petition. [803] Had the defendant deemed it necessary, in order to prepare Ins defense, to demand a specification of the various items on which plaintiff bases his claim for real and vindictive damages, he ought to have filed before issue joined an exception requiring the same to be set forth and detailed with minuteness. We conclude that the plaintiff is entitled to be allowed to introduce legal evidence in support of his allegations. It. is therefore ordered and decreed that the judgment appealed from he reversed, and that this case he remanded to the lower court for farther proceedings according to law, the appellee to pay costs of appeal; those of the lower court to abide the final determination of the suit.