Huffer v. Miller

Briscoe, J., delivered the opinion of the Court. This is an action of slander brought by the appellee against the appellant in the Circuit Court for Washington County. The case was tried on the plea of non cul. The declaration contained three counts. The first and second were demurred to, and the demurrer was overruled. The third count was admitted to be sufficient. The defamatory words alleged in the first count to have been spoken were these: — “He (the plaintiff) swore to dam lies before Justice Bitner, and that was the reason he (the plaintiff) was acquitted, ” meaning thereby that the plaintiff had committed perjury as a witness before Justice J. Irvin Bitner, a Justice of the Peace of the State of Maryland in and for Washington County when examined before the said justice as a witness. The second count is substantially in the same words, and whaf is said of the first will equally apply to the second. The objection to the sufficiency of these counts is based upon the statement that the declaration does not set forth in the colloquium that the words were spoken of the plaintiff in connection with his testimony at the trial before the justice, and that the words are not actionable per se. We do not deem it necessary to discuss the question of the sufficiency of these counts, because the judgment below would not be reversed, even if they were [457] defective. The third count in the declaration is admitted to he good, and a judgment will not he reversed for any defect in form or substance in any count in the declaration, if there be one good count. Art. 5, sec. 15, of the Code. Terry vs. Bright, 4 Md., 430. (Decided 17th June, 1891.) We are, however, clearly of the opinion that the Court was right in overruling the demurrer, because the counts are sufficient in form. At the trial the defendant reserved four exceptions to"5 questions of evidence. The first, second, and third (the fourth is abandoned) present substantially the same question. The defendant proposed to ask the plaintiff, on cross-examination, this question, which was refused by the Court: “Did you not before the trial was had before Justice Bitner, at your stable, in the early part of December, 1889, tell Marine Lamar that you intended to give Huffer, a clubbing?” We cannot perceive what relevancy this evidence could -have to the trial of this case. • There is no evidence in the record to show that the defendant had been informed, either before or at the time the defamatory words were spoken, of the conversation had between the witness and the plaintiff; and it is a well settled rule governing such cases, founded in reason and upon many adjudicated cases, “that facts proved in an action of slander, in mitigation of damages must, to have that effect, have been known and believed by the defendant at the time he uttered the slanderous words.” This evidence was clearly inadmissible, and was properly rejected by the Coxirt. We shall therefore affirm the judgment. Judgment affirmed.