Eames v. Whittaker

• Decision Date: 03 November 1877
• Parties: George W. Eames v. Luther Whittaker
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 342

George W. Eames v. Luther Whittaker

Supreme Court of Massachusetts

November 3, 1877

Worcester. Tort for slander. The declaration alleged that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of larceny, by words spoken of the plaintiff substantially as follows: "He broke into my house and robbed it." "He entered my house and robbed it." "He entered my house and stole my money and my son's money." "My son Herbert saw him in the house and saw him rob it, and will testify to it." Answer: 1. A general denial. 2. That the accusations, if made, were true. 3. That, if the words alleged to have been spoken should be proved, they were privileged communications made in the course of a prosecution against the plaintiff for larceny. Trial in the Superior Court, before Wilkinson, J who allowed a bill of exceptions in substance as follows:

The plaintiff rested his case on the declarations of the defendant to himself in the presence of third persons and to three witnesses, Morrill, Brigham and Cutting, the latter two being constables to whom the defendant applied to make an arrest under a warrant issued by a magistrate, on his complaint. It appeared that the defendant, the day after his house was robbed, called upon Morrill, a neighbor, and informed him of the robbery, and, in answer to the inquiry "Do you suspect any one?" replied, "Yes, I have good reason to believe that George W. Eames did, and I think he is the one." The defendant testified that he called upon Morrill to see if he could make any suggestions that would lead to the detection of the thief; and that he advised with him and learned that Morrill had let to the plaintiff a horse and wagon for that evening, and arranged to have the plaintiff arrested when he was about to have the horse and wagon. The plaintiff contended and asked the judge to rule that, under the circumstances, the communication to Morrill was not a privileged one. The judge refused so to rule, and instructed the jury that if the defendant called upon Morrill for the purpose of taking such action as would lead to the detection of the robber of his house, and made the communication to him in good faith and without malice, then the communication was a privileged one.

The defendant called his son Herbert as a witness, and, on his cross-examination by the plaintiff, he was asked whether he had not told, at a time specified, one Mulchay that his father had accused his mother, the wife of the defendant, of being the thief who had stolen his money, and had choked her to make her tell what she had done with the money; and whether he had not told Mulchay, in the same conversation, that his father had tried to get him to go into court and testify that he saw the plaintiff in the house of the defendant on the night of the robbery. The defendant's son answered both questions in the negative, and denied that his father had ever tried to get him to testify or had ever accused and choked his mother. The plaintiff, for the purpose of contradicting and impeaching the son, called Mulchay as a witness, and asked him whether Herbert had told him, in the conversation referred to, what the plaintiff had asked Herbert on his cross-examination. The judge excluded the evidence.

The defendant was asked, on his cross-examination, whether he had not told one Rice that he had no doubt but that the plaintiff was the one who had entered his house and robbed it. He answered the...