Beehler v. Steever

• Court: Pennsylvania Supreme Court
• Writing for the Court: ROGERS, J.
• Citation: Beehler v. Steever, 2 Whart. 313, 1 Miles 146 (Pa. 1837)
• Decision Date: 13 February 1837
• Parties: BEEHLER v. STEEVER.

2 Whart. 313

1 Miles 146

BEEHLER v. STEEVER.

Supreme Court of Pennsylvania.

February 13, 1837

IN ERROR.

1. In an action of slander, evidence of the size and strength of the defendant is not admissible.

2. In such action, evidence may be given of the number of the plaintiff's children, and the state of his family.

3. Any defence, which does not amount to a justification, may be given in evidence, in mitigation of damages, in an action of slander.

4. The rule of court which requires ten days' notice to be given of special matter intended to be given in evidence, does not apply to evidence of facts, which go in mitigation of damages in slander.

5. In slander, for charging the plaintiff with conspiring, with others, to cheat the defendant, it was held, that evidence was admissible in mitigation of damages, to prove that the plaintiff was the clerk of A.; that A. was a creditor of B., who had failed, and made an assignment of his property, in which A. was preferred, so as to absorb the fund; that the defendant had, at the instance of the plaintiff, endorsed notes for A., which he was obliged to pay, and was not preferred in the assignment; that the defendant had a conversation with A. within forty-eight hours before the words were spoken, in reference to this assignment; and that the slanderous words were spoken in consequence of the assignment, and in reference to it.

6. Words may be actionable, although the expressions are " I believe that," & c.

7. Where the words laid in the declaration were, " You have conspired with others to cheat me," & c., and the words proved were " I believe that you have conspired with others," & c. it was held that this was not a fatal variance.

ON a writ of error to the District Court for the City and County of Philadelphia, it appeared that Henry D. Steever brought an action on the case for slander, against Tobias Beehler, to the term of September, 1833.

The first count of the declaration charged the defendant with speaking the following words to the plaintiff: " You are a villain and a swindler, and you conspired with others to cheat me." The second count laid the words to be spoken of the plaintiff, " He is a villain and a swindler," & c. In the third count the words were thus laid; " You are a cheat, a villain and a swindler and conspired with others to cheat." In the fourth count the words were, " You are a damned villain and a swindler, and you conspired with others to cheat and swindle me out of my money."

At the trial of the cause before PETTIT, President, on the 21st of November, 1836, a witness named Vantine was produced on the part of the plaintiff, who testified as follows:

" Some time, I think in the middle of July, 1833, or rather the latter part of it, as I was sitting at my breakfast, I heard a very loud talking in the street. I then went to the door and looked across the street, and saw Mr Steever and Mr. Beehler at the corner of Race and Third streets, at Sellers & Davis's store. I then went down to the corner, and saw Steever and Beehler standing both on the pavement, near the sill of the door. Mr. Beehler was shaking his fist about; appeared to be very much agitated and calling him ugly names; among the rest, he said, " you are a liar and swindler, and a damned villain, and you have conspired with others to cheat me out of my money " these are the very words; at the same time shaking his fist under his nose; I thought he was going to strike him appeared to be in a great passion; he was talking constantly; he was near to Steever when he spoke the words to him; had his sleeves rolled up; I stood there about five minutes; he called him those names twice in my hearing, whilst I was there; I then left, and went to my shop, which is the fifth door above Race, in Third street; there were people collected together, from thirty to fifty, some from Mayland's factory, opposite; I could not hear any thing Steever said, if he spoke; when Beehler advanced, Steever retreated; Beehler and Steever were both there when I left; when I left, the croud had not separated; Mr. Sellers appeared to be trying to pacify Beehler; I could not hear what he said."

The plaintiff's counsel then asked the following question of the witness; " What is the general size and build of Mr. Beehler's person?" to which the defendant's counsel objected; but the learned judge allowed the question to be put, and the defendant's counsel excepted. The witness answered, " Beehler is a very stout man, stout built; you will not see many men as stout. It was between seven and eight in the morning; the two houses adjoining me are fifteen feet each, and Mayland's factory is three times that, I suppose; my house is the third house, and fifth door; a cartway between the tavern; I was sitting in the room back of my shop when I heard the noise; it was very warm weather; I did not know whose voice it was, till I went to the door, and I found it was Beehler's voice; I think Steever was at this time a clerk in Mr. Richards' compting house; Beehler is a sugar-refiner; carried on business in Ann, above Vine street, and below Third; it is a large establishment."

A witness named Halliday testified to the same words as the preceding witness; and in answer to a similar question, which was also excepted to, said, " Beehler was about six feet high, and strong or stout in proportion."

Another witness named Sellers, swore, that as near as he could recollect, Beehler said, " I believe you are conspiring with others, to cheat me out of my money." On his cross-examination he said, " I took the reference of the words spoken by Beehler at our store, to be to some money transactions between him and M'Caraher; he referred to some debt due by M'Caraher to him; I did not know of any assignment of M'Caraher preferring Richards; Beehler is in Europe now; Beehler appeared, at the time in the store, to listen to what I said; did not speak in that tone of voice as before."

The plaintiff's testimony being closed, the defendant's counsel offered a witness named Eckstein, to prove that the defendant was in the habit of signing notes for the accommodation of Alexander M'Caraher; that it was through the influence of the plaintiff that this was done, and that the notes were unpaid at the time of M'Caraher's failure; which evidence was objected to on the other side, and rejected by the court.

The defendant also produced as a witness Mark Richards, who, after testifying to matters not important now, was asked the following questions:

" Had you any conversation, the day before the occurrence at Sellers and Davis's store, with Beehler respecting the assignment of A. M'Caraher?"

Again. " Had you any such conversation within forty-eight hours of the occurrence?"

Again. " Was Beehler a creditor of A. M'Caraher?"

Again. " Was Steever, the plaintiff, in the habit of drawing notes for, and assisting A. M'Caraher in raising money?"

Again. " Did Beehler express dissatisfaction with the order in which the creditors of A. M'Caraher were preferred in his assignment?"

The plaintiff's counsel objected to these questions, and the court refused to allow them to be put.

The plaintiff's counsel on the cross-examination, asked the following question, ‘ What family has the plaintiff, and how many children has he?’ The defendant's counsel objected, but the court allowed it to be put; and the witness answered that the plaintiff had three children, that he got his living as a clerk, or perhaps occasionally acted as an arbitrator, and all would depend on his good character.

The defendant's counsel then offered in evidence, in mitigation of damages, the assignment of A. M'Caraher, dated July 19th, 1833, to Mark Richards and E. Vansyckle; the plaintiff having been stated to be the confidential clerk of the former; to show such a disposition of M'Caraher's property by the assignment, as was injurious to the defendant and likely to produce loss to him; and that Mark Richards the assignee, was so largely preferred in the assignment as a creditor, as probably to absorb the funds of the estate. The learned judge however, refused to permit this evidence to be given.

The defendant's counsel again offered the testimony of Eckstein, and proposed to put the question to Richards, before mentioned, but the court again rejected them. To all which decisions the defendant excepted.

The evidence having been closed on both sides, the counsel for the defendant requested the judge to charge the jury as follows:

1. " That none of the words stated in the declaration are under any circumstances actionable, except the words " you," or " he" " conspired with others to cheat me."

2. That if the jury find for the plaintiff, no damages can be given, except for those words which are actionable; and that the words having been spoken in the heat of passion, and an offer of an apology having been promptly and repeatedly made, are strong circumstances in mitigation of damages.

3. That if the jury believe from the evidence, that the words used by the defendant were as stated by Mr. Sellers--" I believe you are conspiring with others to cheat me out of my money" --these words are not actionable, and there is a variance between the words as laid and as proved, and the verdict ought to be for the defendant.

4. That if the jury believe, from the evidence, that the words were spoken by the defendant in the heat of passion, and merely as general abuse, and were neither intended by him, nor understood by the bystanders as charging the plaintiff with having committed an indictable offence, but referred merely to the defendant's belief that the plaintiff was privy to, or had influenced Mr. M'Caraher, in making his assignment, to provide for Mark Richards, and others creditors, in...