Allen v. Fincher

• Decision Date: 18 June 1914
• Docket Number: 653
• Citation: 65 So. 946,187 Ala. 599
• Parties: ALLEN v. FINCHER.
• Court: Alabama Supreme Court

65 So. 946

187 Ala. 599

ALLEN v. FINCHER.

No. 653

Supreme Court of Alabama

June 18, 1914

Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.

Action by Emma Fincher against S.I. Allen. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Hunt &amp Hunt, of Ft. Payne, for appellant.

Isbell & Scott, of Ft. Payne, for appellee.

DE GRAFFENRIED, J.

Counts 1, 5, 6, and 7 are clearly not subject to demurrer. The blanks in these counts might well have been filled out, but the demurrers were not well taken simply because of the blanks. The blanks refer to the day of the month in which the alleged slanderous language was used, but as the counts show under a videlicet the month in which the slanderous words were used, we think the time of the slander alleged in the complaint is sufficiently stated in each of the above counts to meet the requirements of the law. Indeed counts 1, 5, 6 and 7 are in substantial compliance with the form provided by our Code for this class of actions.

(2) Count 2 does not, with the technical accuracy required by good pleading, allege a publication of the slander, and, had the trial court's attention been directly called to this specific technical defect by a demurrer addressed to the court and setting out this particular defect, the trial court, no doubt, would have sustained the demurrer. In that event the plaintiff could have amended the count by setting up that the alleged slander was uttered in the presence of divers persons, or in the presence of certain named persons. The count, however, was not demurred to on this particular ground, and as it is plainly sufficient, after plea and verdict, to support a judgment, the trial court cannot be put in error for overruling the defendant's demurrer to this count. The count was not subject to the specific properly stated grounds of demurrer which the defendant assigned to it.

"No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer." 6 Mayf. Dig. p. 722, subd. 214.

(3) We think that prior to the time a witness, Copeland, was put upon the stand, the fact that the defendant, Allen, had been prosecuted in a federal court had been sufficiently developed by the evidence. We also think that from the evidence which had been introduced when Copeland took the stand as a witness, the jury had a right to infer that the prosecution in the federal court grew out of the alleged slander which was the basis of this suit. In other words, we think that when Copeland took the stand as a witness the jury were then in possession of facts from which they had a right to infer that the defendant had recently been tried in a federal court. This being the situation, the trial court refused to permit witness Copeland to testify, on behalf of the defendant, that Frank Stapp, who had testified as a witness for the plaintiff in this case, and whose testimony, if believed by the jury, was damaging to the defendant, was the prosecutor of the defendant in the case which had been tried in the federal court. The defendant desired this testimony for the purpose of showing that the witness Frank Stapp was biased against him. "The partiality of a witness for one party or side, or his prejudice against the other side, is always regarded as bearing on the trustworthiness of his testimony. One way of showing the existence of such bias is his prior expression of such feelings. Thus it is always allowable to inquire of the witness for the prosecution, in cross-examination, whether he has not expressed feeling of hostility towards the prisoner. The like inquiry may be made in civil actions; and, if the witness denies the fact, he may be contradicted by other witnesses. But the use of such evidence is allowable independently of its effect as a contradiction of the witness. In some courts the limitation is laid down that the details of the quarrel or other exhibition of feeling are not to be gone into, but the phrasing of this limitation varies. The witness may explain away his expressions as not due to real prejudice. Some courts require, in analogy to the principle described post section 462, viz., impeachment of a witness by showing contradictory statements, 'that the attention of the witness be first called to the alleged utterances before other evidence of it can be offered.' " 1 Greenl. on Ev. (6th Ed.) p. 575, § 450.

The above quotation emphasizes the admissibility of evidence for the purposes indicated, but it illustrates the hopeless contradictions which exist in the opinions of courts of last resort as to how such evidence shall be brought to the attention of the triers of...