Cooley v. Galyon

• Decision Date: 29 November 1902
• Citation: 70 S.W. 607,109 Tenn. 1
• Parties: COOLEY v. GALYON.
• Court: Tennessee Supreme Court

70 S.W. 607

109 Tenn. 1

COOLEY v. GALYON.

Supreme Court of Tennessee.

November 29, 1902

Appeal from circuit court, Knox county; Joseph W. Sneed. Judge.

Action by Luther A. Galyon against James L. Cooley. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Green & Shields, for appellant.

Templeton Carlock & Templeton, for appellee.

SHIELDS J.

This is an action to recover damages for alleged slanderous words spoken by Cooley, the plaintiff in error, of and concerning Galyon, the defendant in error, while being examined as a witness before the master upon a reference to ascertain damages resulting from the wrongful suing out of an injunction issued in the case of Eckle et al. against the Florence Crittendon Home, lately pending in the chancery court of Knox county. Galyon and Cooley were both contractors and builders residing in Knoxville, and neither was a party to the chancery cause. The declaration contains two counts,--one in slander and one in libel,--both predicated upon the same words, which are hereinafter set out, in stating the averments of a special plea filed by the defendant. It is averred that the words were falsely and maliciously spoken and published of and concerning the plaintiff, with respect to his occupation and business as a builder and contractor, to his damage $5,000. The defendant filed a plea of not guilty and a special plea in which he says that he uttered the language complained of while being examined as a witness in a suit pending in the chancery court of Knox county, styled "G. B. Eckle et al. vs. Florence Crittendon Home," in answer to questions put to him by counsel in the said cause; that the bill in said cause was filed to enjoin the Florence Crittendon Home from completing a house then in course of construction, and designed as a home for fallen women; that an injunction was issued in said cause, and remained in force until the cause was heard and the bill dismissed; that upon a reference to the master to hear proof and report what damages, if any, the Florence Crittendon Home had sustained by reason of the wrongful suing out of said injunction, it was proven that at the time the injunction was issued the Florence Crittendon Home had awarded the contract for the building of said house to Thomas & Turner, contractors, for the contract price of $2,497, and that after the dissolution of the injunction they refused to carry out the contract, because of an advance in wages and material, unless the Florence Crittendon Home would pay them the additional sum of $303.90; that the complainants, Eckle and others, claimed that Galyon, who was alleged to be a reliable contractor, was then offering to do the building for the original contract price of $2,497, and that therefore the defendant was not damaged by the wrongful suing out of the injunction; that upon this reference the defendant, who was in no way interested in or connected with said litigation, was called and sworn as a witness in behalf of the Florence Crittendon Home, to prove the advance in the price of labor and material, and on cross-examination by the complainant's solicitors he was asked questions, and made answers thereto, as follows: "Q. Is Mr. Galyon a reliable contractor? A. I know Mr. Galyon hasn't paid us for some bills that he bought last year. We would not sell him lumber today without cash. Q. He is considered reliable with respect to his work, is he not? A. That depends on how broad a sweep you give the word 'reliable.' If you mean he faithfully performs all his contracts in every particular, I must say he is not reliable. In other words, I will be a little more explicit. He will complete a contract, and put in an inferior grade of material than what is called for in the specifications;" that these answers had reference to the said inquiry, and were fairly responsive to the questions asked him by counsel; and that they were absolutely privileged, under the law. He denies that he uttered the words maliciously. While this defense could have been made under the general issue, it could also be made by special plea. Shadden v. McElwee, 86 Tenn. 148, 5 S.W. 602, 61 Am. St. Rep. 821. Issue was joined, and the case was tried by the circuit judge and a jury, and upon the trial the plaintiff introduced the solicitor of the complainants in the cause of Eckle and others against the Florence Crittendon Home, as a witness in his behalf, and had him identify the original bill, the answer, the decree denying the complainants relief, and ordering the reference to the master to ascertain the damages sustained by the defendant by reason of the wrongful issuance of the injunction, and the deposition given by defendant, Cooley, in the chancery cause; the original papers being used by consent, all of which were then read in evidence by the plaintiff. Upon cross-examination the witness identified the depositions of other witnesses taken in the cause, the report of the master allowing damages to the defendant in that cause, and the decree confirming the same, which were then read to the jury by defendant's attorney. Other evidence was introduced by the plaintiff tending to prove that the defendant gave the deposition read, and entertained malice toward the plaintiff. The proof introduced by the plaintiff sustained the averments of the special plea, and upon the conclusion of plaintiff's evidence the defendant filed a demurrer, in proper form, thereto, which was overruled by the court, and the damages of the plaintiff assessed by the jury at $500, and judgment given therefor; and the defendant has brought the case before this court, and assigns error.

For the plaintiff it is said that the defendant, by calling out and reading in evidence those portions of the record in the chancery cause which the plaintiff had not offered, introduced original evidence in his behalf, and lost his right to demur to the evidence of the plaintiff, and that for this reason the action of the court in overruling the demurrer was correct, regardless of other questions. It is true that, if a defendant introduce any original evidence in his behalf, he cannot demur to the evidence of the plaintiff; but can it be said that the evidence elicited by the defendant in this case was original evidence? Clearly not. The plaintiff had introduced part of the record in the chancery cause, and it was perfectly competent for the defendant to call for the remainder of it. It would have been the better practice to have required the plaintiff to read the entire record; but, having failed to do so, the defendant had the right to call for the rest of it, and examine the witness then upon the stand in relation to it. This was legitimate cross-examination, in the strictest sense, as the evidence brought out related to and was germane to that elicited in the examination in chief. But whether germane or not, the defendant had the right to bring out upon cross-examination any matter pertinent to the issue; the rule in Tennessee being that the cross-examination is only limited by relevancy and competency of the evidence sought to be introduced, and the defendant, by exercising this right, is not precluded from demurring to the evidence. This question was fully discussed in the case of Sands v. Railway Co., 108 Tenn. --, 64 S.W. 478, and the rule there stated as here applied.

...