Carpenter v. Willey

• Decision Date: 20 March 1893
• Citation: 26 A. 488,65 Vt. 168
• Parties: LIZZIE CARPENTER v. EZRA WILLEY; EZRA WILLEY v. LIZZIE CARPENTER
• Court: Vermont Supreme Court

26 A. 488

65 Vt. 168

LIZZIE CARPENTER v. EZRA WILLEY;

EZRA WILLEY v. LIZZIE CARPENTER

Supreme Court of Vermont

March 20, 1893

GENERAL TERM, 1892

Action for slander. Plea, the general issue. Trial by jury at the June term, Orange county, 1891, TAFT, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.

Petition dismissed with costs to the petitionee.

J.K Darling and R.M. Harvey for the defendant.

OPINION

THOMPSON

The testimony of the witnesses, Fay and Ames, was clearly admissible. It tended to prove an admission by the defendant of the speaking by him of the slanderous words charged in the declaration. Fay's testimony also tended to prove an attempt by the defendant to manufacture evidence with which to impeach the plaintiff's character. The fact that Fay's testimony was not responsive to the questions put to him did not render it inadmissible for that reason.

The witness Lord, improved by the plaintiff, was a material witness, as his testimony tended to prove the speaking by the defendant of the slanderous words alleged in the declaration to have been spoken in August, 1888. The testimony of plaintiff's witness, Daniel Johnson, tended to prove an attempt by the defendant to prevent the attendance of Lord as a witness in behalf of the plaintiff. Such an attempt is admissible against the party making it, as evidence tending to confirm the witness whose testimony is thus sought to be suppressed. Kirkaldie v. Paige, 17 Vt. 256.

The inquiry of this witness by the defendant as to plaintiff's reputation for chastity did not relate to any matter inquired about in his examination-in-chief, and was no part of the legitimate and proper cross-examination. It related solely to matter of defence. It was wholly within the discretion of the trial court to permit the defendant to make the inquiry at that stage of the case, or to require him to defer it until he took the case in defence. Carey v Hart, 63 Vt. 424, 21 A. 537; Greenl. Ev., § § 445, 447. The defendant was distinctly informed by the presiding judge that he could make the inquiry when he came to put in his defence.

The court properly excluded the evidence offered by the defendant to show that plaintiff's husband had charged her with the same things as those which were the gist of the defendant's slanderous utterances concerning her. The evidence offered did not tend to prove that the alleged accusation of the husband, if ever made, was made prior to the speaking of the slanderous words by the defendant.

The defendant put to his witness, George Johnson, this inquiry in regard to the plaintiff: "Did you hear in the summer of 1888, some particular things, some stories about her?" The court excluded the question, to which ruling the defendant excepted. It is incumbent upon the party excepting to the rejection of evidence to have the record show that the ruling was prejudicial to him. The general rule is that to reserve an available exception to the exclusion of the testimony of a witness a proper question must be asked, and upon objection thereto an offer must be made, stating the testimony which the witness will give if permitted to answer the question, and an exception must be taken to the exclusion of the evidence as shown by the question and offer. Kern v. Bridwell, 119 Ind. 226, (12 Am. St. R. 409, 21 N.E. 664); Dreher v. Fitchburg, 22 Wis. 675, (99 Am. Dec. 91); Carpenter v. Corinth, 58 Vt. 214, 2 A. 170; Roach v. Caldbeck, 64 Vt. 593, (24 A. 989). In Carpenter v. Corinth, supra, exception was taken by the plaintiff to the permitting certain questions to be put to witnesses, but it did not appear what answers were given, if any. In disposing of the exception the court said: "It is incumbent on the plaintiff to show that the answers were prejudicial to him The court cannot presume that they were. * * * The questions were not evidence, and it was not error to allow them to be put." The rule above stated is simply the converse of this holding. To the same effect are Ainsworth v. Hutchins, 52 Vt. 554, and Smith v. Ins. Co., 60 Vt. 682, 15 A. 353. There was no offer in connection with the ruling of the court excluding the question put to Johnson to prove any fact by him material to any issue in the case, nor does the record show that he would have given any testimony in response to the question. Hence the defendant's exception to the exclusion of this question cannot avail him.

The defendant's witness, Julia Udall, having been asked by him the question whether the treatment of the plaintiff by her neighbors had been different since the alleged slander from what it was before, the court refused to permit the witness to answer the question, to which the defendant excepted. It does not appear that this witness had any knowledge upon that subject, nor was there any offer by the defendant to prove any fact by her bearing upon that question. Hence, for the reason above stated, this exception cannot avail the defendant.

The defendant...