Delatine v. Kramer

Mr. Justice Boggs delivered the opinion of the court. An action in case was instituted by appellee in the city court of East St. Louis against appellant for slander. A trial was had, resulting in a verdict and judgment in favor of appellee for the sum of $500. To reverse said judgment, this appeal is prosecuted. Appellant conducted a grocery store and meat market, while the husband of appellee ran a lunch counter and confectionery store. On the day in question, appellant and appellee’s husband got into an altercation over a grocery bill which appellant claimed was owing to bim from appellee’s husband. Appellee testified that she took hold of appellant’s coat collar and tried to separate the two men; that while so engaged appellant, among other names, called her a thief, his words being: “You are a thief; you robbed me of my blood.” The evidence discloses that at said time appellant had received a cut or injury on the head, and there was considerable blood on his face. It is contended by counsel for appellant for a reversal of said judgment that there is a variance between the allegation and the proof. The declaration, which consists of one count, charges that the alleged slanderous words were spoken of appellee, while the proof shows that the words were spoken to her. It is further contended by counsel that the word “thief” as used by appellant, is modified by the words “you robbed me of my blood,” so that the word “thief” in the connection used did not impute larceny or any other crime. We are of the opinion and hold that counsel for appellant is correct as to both of the propositions urged provided appellant is in a position to raise question of variance. The declaration charges the alleged slanderous words to have been spoken of appellee in the third person, whereas the uncontradicted evidence is to the effect that they were addressed directly to her, that is, in the second person. A variance of this character is fatal to a right of recovery. Sanford v. Gaddis, 15 Ill. 229; Wilborn v. Odell, 29 Ill. 456; Wallace v. Dixon, 82 Ill. 202; Becker v. Schiller, 49 Ill. App. 606; 25 Cyc. 486. It is contended by counsel for appellee that the question of variance was not raised in the lower court, and for that reason it cannot be urged here. The record discloses that appellant moved for a directed verdict at the close of appellee’s evidence, and again at the close of all the evidence, and it is contended by counsel for appellant he is therefore in a position to raise the question of variance in this court. We are of the opinion and hold that to raise the question of variance in this court it must have been specifically raised in the court below. The law is that words actionable per se may be so changed in their meaning by other words used in connection therewith as to render the same not actionable without proof of special damages. Sanford v. Gaddis, supra; Baker v. Young, 44 Ill. 42. The record clearly discloses that the word “thief,” when addressed to appellee, was followed by the words, 1 ‘ you robbed me of my blood. ’ ’ Regardless of whether appellant referred to the fact that he was bleeding, and that appellee was in some way responsible therefor, we are of the opinion and hold that the use of the word “thief,” in connection with the words “you robbed me of my blood,” do not indicate that appellant was charging appellee with being a thief. It might be further observed that the evidence wholly fails to prove the allegation of the declaration to the effect that the words as used were intended to charge appellee with having “feloniously stolen, taken and carried away the goods and chattels of the defendant.” It is next contended by appellant that the court erred in its rulings on the instructions. In view of our holding on the merits of the case, as above set forth, it is not necessary for us to discuss the same. No right of recovery is disclosed by the record, and inasmuch as it is apparent there can be no recovery in this case, the judgment of the trial court will be reversed without remanding. Judgment reversed.