Elmer v. Fessenden

• Decision Date: 24 September 1891
• Citation: Elmer v. Fessenden, 154 Mass. 427, 28 N.E. 299 (Mass. 1891)
• Parties: ELMER v. FESSENDEN.
• Court: Supreme Judicial Court of Massachusetts

154 Mass. 427

28 N.E. 299

ELMER v. FESSENDEN.

Supreme Judicial Court of Massachusetts, Franklin.

September 24, 1891

COUNSEL

John

A. Aiken, for plaintiff.

H Winn, for defendant.

OPINION

HOLMES J.

1. This is an action for words spoken by the defendant, and falsely alleging that the silk furnished by the plaintiff to his workmen contained arsenic. 151 Mass. 359, 24 N.E. 208. At the second trial, the plaintiff, in order to show that one Phillips had been deterred from working for him longer by the defendant's statement, called Phillips' mother as a witness to show that her machine was removed from the house after the words were spoken. The witness testified that the defendant spoke the words, but that she could not fix the time. To contradict her, evidence was admitted that at the former trial she had testified that the words were spoken before the machine was removed. The defendant excepted.

We cannot say that the evidence did not tend to contradict the witness. The question is one of degree. If the former testimony had been given the day before, under the circumstances of great solemnity, no one could doubt that it tended to contradict her denial of recollection a day later. On the other hand, as suggested by the counsel for the defendant, the fact that a person recited a date at school hardly tends to contradict his statement in middle life that he does not remember it. Where the line shall be drawn must depend upon circumstances, and must be left largely to the discretion of the presiding judge.

Neither can we say that the contradiction was not material. It was open to the defendant to argue that, as the witness knew of the speaking of the words, and of the removal of the machine it was very improbable that she would not have remembered it if one was the cause of the other, and thus that her statement that she did not remember which was first was in effect evidence that the defendant's words were not the cause of the witness' daughter's stopping work. If so, it was proper to allow the witness' statement to be contradicted.

2. The plaintiff claimed as part of his damages trouble which he was put to necessarily in order to determine whether there was arsenic in his silk, and to protect his employes. He estimated the amount at $5.24 per day, and the jury allowed him for eight days at that rate. No exception was taken to the rulings allowing a recovery for this item, but instructions were...