Ellis v. Whitehead

• Citation: 54 N.W. 752,95 Mich. 105
• Court: Supreme Court of Michigan
• Decision Date: 10 March 1893
• Parties: ELLIS v. WHITEHEAD.

54 N.W. 752

95 Mich. 105

ELLIS v. WHITEHEAD.

Supreme Court of Michigan

March 10, 1893

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Action by Thomas Ellis against Alvin H. Whitehead to recover damages for slander. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

In an action of slander it was charged that defendant said of plaintiff that he "is a damned, low-lived, thieving son of a bitch, and I have had a man watching him, and seen him steal; and I believe you know he is thief." Held, that where a witness, who was one of the persons to whom the words were spoken, testified that defendant did not state in the conversation what he had plaintiff watched for, it was proper not to permit such witness to state that he had since learned why he had him watched, since such evidence would be hearsay.

E. C. Chapin and S. L. Kilbourne, for appellant.

R. A Montgomery and Russell C. Ostrander, for appellee.

HOOKER C.J.

Plaintiff recovered a judgment in an action for slander, from which defendant appealed. The language, as counted upon, is as follows, viz.: "Tom Ellis is a damned, low-lived thieving, son of a bitch; and I have had a man watching him and seen him steal, and I believe you know he is a thief." The undisputed testimony shows that the conversation occurred in the presence of several gentlemen, all but one of whom were partners with plaintiff and defendant in the Lansing Ice Company, hereinafter mentioned. The defendant's accusation appears to have grown out of the fact that plaintiff had taken, and applied to his own use, some ice stored at Twin lakes, which the defendant claimed that the Lansing Ice Company was under contract obligations to deliver to the Cleveland Ice Company.

Philo Daniels, the partner of defendant in another ice company doing business at Lansing, was called as a witness for the plaintiff, and testified to a conversation including some of the words complained of. On cross-examination he stated that he did not know what transaction the language referred to. The following colloquy occurred: "Question. You say on hearing what he said to Mr. Barnes you did form some conclusion as to what Whitehead's talk referred to, did you not? Answer. No, sir; I don't know that I did. Q. You have since learned that it referred to some difficulty growing out of the ice business, have you not? (Objected to as immaterial; what he had since learned about it. Objection sustained. Exception by defendant.) Q. What did you understand, from the talk between Mr. Whitehead and Barnes, was referred to? A. I understood it to refer to the ice business. Q. And to what about this ice business? A. That I cannot tell you." It appears that while the objection to the first question was sustained, subsequent questions elicited a full answer. Hence, if the ruling was erroneous, it was cured.

The second assignment of error cannot be noticed, as the record fails to show an exception. The witness Daniels was cross-examined at length in regard to the question whether the conversation was connected with or grew out of the ice business. Seven car loads of the ice had been shipped from Clare county to plaintiff and Daniels. The examination proceeded as follows: "Question. How long after the shipment of the ice before you learned that what Mr. Whitehead said about Mr. Ellis to you grew out of the ill feeling over the shipment of that ice, if you did learn it? Answer. Why, I never learned that the feeling grew out of that. Q. I understood you, Mr. Daniels, that you are not aware of the fact that what Mr. Whitehead said in that conversation about Mr. Ellis grew out of a dispute about the management of the ice business? A. I never knew what it did grow out of. Q. Did you know of any difficulty between Mr. Whitehead and the members of that company, growing out of the shipment of ice to the firm of Daniels & Ellis? (Objected to as immaterial and incompetent.) Mr. Kilbourne: I want to refresh the witness' recollection. (Objection sustained. Exception by Mr. Kilbourne.) Q. Have you told all that you know about this affair? A. Yes, sir." If the question objected to were necessary to refresh the recollection of the witness, its object was fully accomplished when asked. The witness unequivocally stated that he had told all he knew about it, and we think that no error was committed in excluding the answer. On cross-examination witness was asked: "Q. Did he (Whitehead) tell you what he had him watched about? A. No. Q. Did he tell you that he had had the cars watched, to see whether some of that ice came down here that should not come here? A. No, sir. Q. Have you learned since that that is what he did do? (Objected to as immaterial. Objection sustained. Exception for defendant.)" In defendant's brief it is contended that this testimony was admissible in mitigation of damages, but, as the court was not informed that such was the purpose of the question, it cannot be urged here. But the ruling was right. The question called for hearsay testimony.

O. M. Barnes, a witness for plaintiff, testified that he heard the latter portion of the conversation in which the alleged slanderous words were uttered. He said: "I heard Mr. Whitehead repeat that Mr. Ellis was a thief, and that he would be able to prove it; and then I stepped forward. Mr. Kilbourne: I ask to have that stricken out. That is not the language. (This was consented to.) Question. Give us the language as near as possible, used by Mr. Whitehead. Answer. Mr. Whitehead stated: 'Phile, Tom Ellis is a thief.' Mr. Kilbourne: That I ask to have stricken out. The Court: Those words are averred. Mr. Kilbourne: The words, 'Phile, Tom Ellis is a thief?' The Court: The rule, as I understand it, Mr. Kilbourne, is that the material words alleged in the declaration must be proven exactly as alleged; and because some words are left out, or because some other words are added, which do not change the meaning, do not affect it. Go on. (Exception by Mr. Kilbourne.) Q. Now, go on, and state that. A. 'Phile, Tom Ellis is a thief, and I can prove it.' Mr. Kilbourne: Now, I ask to have that stricken out, for the reason that it is not the language-any completed statement-used in the declaration. Court: I will decline to strike it out. (Exception by Mr. Kilbourne.)" This statement was not admissible to prove the charge laid in the declaration, but it would have been admissible to show malice had it occurred at a subsequent interview, being substantially a repetition of the slander. Leonard v. Pope, 27 Mich. 145; Brown v. Barnes, 39 Mich. 213; Beneway v. Thorp, 77 Mich. 181, 43 N.W. 863. It is certainly no less admissible because a part of the same conversation. Reiteration and emphasis on the occasion of the slander go to the question of malice. It was also properly received as a part of the res gestae, the whole conversation being admissible. Newman v. Stein, 75 Mich. 402, 42 N.W. 956. On redirect examination the witness Barnes was asked: "Question. State to the jury whether or not every other member of that company consented to and recognized the rights of Mr. Ellis to take that ice. (Objected to as immaterial.) The Court: Answer the question. (Exception by Mr. Kilbourne.) Answer. Yes, sir; they all consented; all but Mr. Whitehead." The defendant's counsel had sought by cross-examination to develop his theory that the plaintiff had fraudulently taken ice belonging to his copartners, and applied it to his own use. We see no error in permitting plaintiff's counsel to show otherwise upon redirect examination. It was proper as bearing upon the question of malice.

The eighth assignment is based upon an objection to a question asked witness Barnes by defendant's counsel upon cross-examination. The witness had testified that he had received the money from the sale of ice from two houses, and that Mr. Renyx had received the money paid by the Cleveland Ice Company. Question by Defendant's Counsel: "Do you remember what amount was received by you for the two houses that you sold, and the paper which you have indorsed here? (Objected to as immaterial.)" The objection was sustained, but the witness proceeded to answer as to how much the defendant and other parties put in, and added: "The parties who would have probably been individually responsible pecuniarily in an action for damages to the greatest amount were Mr. Whitehead and myself." The witness seems to have covered the subject aimed at, without specifically answering the question put, viz. that Whitehead was concerned over an increased liability by reason of Ellis' misappropriation of a portion of the ice, and that Barnes knew about it, and must have understood the language used as applying to that matter. We think that the defendant was not injured by this ruling.

The ninth error assigned was cured by the subsequent admission of the testimony. On cross-examination defendant's counsel sought to put before the jury the contents of a bill of complaint filed in Ingham circuit court in behalf of the defendant against the Lansing Ice Company. The object was stated to be to show that the witness Barnes had, as a member of the company, conceded a certain contract with the Cleveland Ice Company to be as alleged in said bill. The concessions of the witness were not material. He was not a party to the action, and had not undertaken to state what the contract was. Moreover, it appears to have been in writing and its provisions were practically conceded upon the trial. Witness was asked on redirect examination: "Question. State the business occupation of Mr. Whitehead. Answer. Buyer of produce. Q. He is also a director in one of the national banks? (Objection by defendant's counsel.) Mr. Montgomery: It is offered for the...