Brooks v. Dutcher

• Decision Date: 06 January 1888
• Citation: 22 Neb. 644,36 N.W. 128
• Parties: BROOKS v. DUTCHER.
• Court: Nebraska Supreme Court

22 Neb. 644

36 N.W. 128

BROOKS

v.DUTCHER.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

In an action for damages for defamation of character, where the speaking of the words are admitted and their truth alleged in justification, it is error without prejudice to permit a witness to testify to the speaking of words of substantially the same meaning and import, and give as his understanding of the words used the same meaning as is charged in the petition and justified in the answer, that issue being settled by the pleadings.

Where a witness is called for the purpose of testifying to the general reputation of a party for chastity, his examination in chief should be confined to general reputation, and not as to what particular persons, or how many, the witness may have heard speak of the person whose reputation is sought to be attacked.

Evidence examined, and held to sustain the verdict.

Damages awarded by the jury held to be excessive.

A new trial will not be granted on the ground of newly-discovered evidence, when such evidence is merely cumulative.

Error cannot be predicated upon the ruling of a trial court admitting or excluding immaterial testimony, where it is apparent that no prejudice could result to either party, whatever the ruling might be.

A general exception to instructions given is insufficient. Each specific instruction which is claimed to be erroneous must be distinctly pointed out and specifically excepted to.

Error to district court, Holt county; TIFFANY, Judge.

Action for slander, brought by Abbie E. Dutcher against Franklin W. Brooks. Verdict and judgment for plaintiff. Defendant brings error.Cleveland & Meals and M. P. Kinkaid, for plaintiff in error.

B. L. Snow and M. F. Harrington, for defendant in error.

REESE, C. J.

The petition in this case alleged that on or about the fourteenth day of December, 1885, at the village of Atkinson, Holt county, Nebraska, plaintiff in error, with the intent and purpose of injuring defendant in error, and in a certain conversation which he had concerning her in the presence and hearing of a number of persons, falsely and maliciously did speak and publish certain defamatory words, by which he charged defendant in error with being a woman of bad character for chastity; the particular allegation of the petition being that, in said conversation, he made use of the following language: “She [[[meaning the plaintiff] is a whore;” that she is a married woman, and that she sustained damages in the sum of $5,000. Plaintiff in error filed an answer to this petition, by which he alleged the truth of the charge claimed to have been made by him. The cause was tried to a jury, and resulted in a verdict in favor of plaintiff, and assessing her damages at the sum of $3,000. A motion for a new trial was made, which being overruled, judgment was rendered upon the verdict, and defendant brings error to this court.

At the commencement of the trial no question was presented to the court as to the order of trial and introduction of testimony, or upon whom devolved the burden of proof, defendant in error assuming the burden and proceeding with the trial as though the allegations of the petition were denied. Defendant in error was first placed upon the stand, but as no question is presented with reference to her testimony, it will not, for the present, be noticed. The first question presented by the brief of plaintiff in error is as to the examination of one F. E. Havens, a witness sworn upon the part of the plaintiff. The objection is, that the witness was improperly permitted to testify as to his understanding of what the language used by plaintiff in error was, his answer being, “I understood from his language that she was a very bad woman--she was a whore.” It was contended that this testimony was improperly received over the objection of plaintiff in error, and that the witness should be confined to a statement of the language used by plaintiff in error, instead of giving his understanding of what that language imported. It is not necessary to inquire here whether this testimony would have been competent under other conditions than those presented at the time of the trial, the allegations in the petition being that in that conversation plaintiff in error charged defendant in error with being a prostitute, and this allegation being admitted, and the truth of the charge alleged by the answer, disposes of any necessity of proving that the charge was made. The answer of the witness, being simply that he understood from the language that he intended to convey a meaning which plaintiff in error by his answer, and by his whole defense upon the trial, says he did intend to convey, and which he alleged was true, could not be of any possible prejudice to him, even if erroneous; and therefore the judgment could not, for that reason, be reversed. The same observation may be made as to the testimony of the witness Brady, in which he details a conversation with plaintiff in error, whereby he informed the witness that the house of plaintiff, being an hotel, was an very unsafe place to stay, owing to the fact that plaintiff and her husband were liable to try to “put up a job” on those who might go there. The question was asked, “What kind of a job?” His answer was, “To get her to sleep with him, as I understood him in his conversation.”

I. F. Moon, being called as a witness, testified as to conversations had with plaintiff in error, and as to charges made by him against the chastity of defendant in error, and of his efforts to procure others to go to her house for the purpose of soliciting illicit intercourse with her, or, as was expressed by the witness, “of testing her character.” On cross-examination the witness was asked if he knew the general reputation of the house kept by defendant in error about the time of the commencement of this action. He answered, “I do not.” He was then asked to state if he did not, several times, before the commencement of this action, ask Mr. Brooks, plaintiff in error, if he was getting much down at the Commercial House, when he was boarding there. This was objected to as incompetent and immaterial, and the objection was sustained. This ruling of the court is now assigned for error. We can see no error in the decision. The answer, whether in the affirmative or negative, could have had no effect upon the cause, or tended, either one way or the other, to increase or diminish plaintiff's defense. It was shown by the testimony that plaintiff in error had boarded at the house of defendant in error. The conversation as detailed by the witness showed that charges of unchastity were very frequently made against her by plaintiff in error. The simple asking of the question was wholly unimportant, and the answer of plaintiff in error thereto could not, in any view of the case, have been admissible. The ruling was, therefore, correct.

One James Cross was called as a witness by plaintiff in error in his defense, and testified in substance that about five years before the trial, he boarded with defendant in error in the village of Bozille Mills; that upon one occasion, during the absence of the husband of defendant in error, he came into the house and was reading a paper; that she came in, sat down by him, and began to knock her knees against his, when he pinched her knees a time or two, and that she threw her bed room door open, went in, and laid down upon the bed; that he went into the room where she was lying, and made an improper proposal to her, which was resented with considerable force by her, the language of the witness being, “She kicked;” that the next morning, when he went to breakfast, she asked him what he would give her to settle it, and not say anything to her husband about it; and that he told her he would not give her anything. The question was then asked if he stated why he would not. This was objected to as incompetent and immaterial, and the objection was sustained. He was then asked to state the conversation in reference to the matter of settlement, and, upon objection being made, the testimony was excluded. The rulings of the court were excepted to, and are now assigned for error.

The issues presented by the pleadings were as to the truth or falsity of the charge of unchastity made by plaintiff in error. The witness Cross was, evidently, introduced for the purpose of sustaining this charge. It was competent for that purpose for him to testify to any facts which would tend to prove the defense. This he did without objection, but it was wholly immaterial to inquire as to what reason he may have offered, or as to what might have occurred at a subsequent time, having no reference to the question under inquiry. Plaintiff in error offered to prove by the witness that a warrant was issued by the procurement of defendant in error; that he was pursued by an officer, and arrested in Dakota territory, and compelled to pay $50, and the costs of prosecution, and settle the matter up; but no proof was offered, even had it been competent, to show any connection of defendant in error with the alleged settlement, and of which she had previously testified she had no knowledge.

One John Williamson was called as a witness for plaintiff in error, and interrogated as to the general reputation of defendant in error for chastity while she resided in Creighton, some four years prior to the time of the trial; and upon being asked if he was acquainted with her general reputation for chastity in the town and vicinity of Creighton, his answer was, that he did not think he had ever heard most of the people say anything about it. He was again requested to answer by saying yes or no, as to whether he was acquainted with her reputation. His answer was, “I would have to say no, because I have never talked with most of the people.” He was then asked what the “community at large in the town of Creighton said as to the reputation of this woman as...