Hartranft v. Hesser et Ux.

• Decision Date: 01 January 1859
• Citation: 34 Pa. 117
• Parties: Hartranft versus Hesser et ux.
• Court: Pennsylvania Supreme Court

Page 117

34 Pa. 117

Hartranft versus Hesser et ux.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Berks county.

McKenty, for plaintiff in error, contended that such evidence was not admissible as evidence of malice, and cited Thomas v. Crosswell, 7 Johns. 264; Finnerty v. Tipper, 2 Campb. 75; Rustell v. Macquister, 1 Id. 48; Howell v. Cheatham, Cooke 248; Wallis v. Mease, 3 Binn. 550; Eckart v. Wilson, 10 S. & R. 53; Stuart v. Lovell, 2 Stark. Rep. 93; Pearce v. Ormsby, 1 M. & Rob. 455; Steinman v. McWilliams, 6 Barr 170.

Green & Richards, for defendants in error, cited 1 Greenl. Ev. § 18; 2 Id. § 418; 2 Stark. on Sland. 47; Bodwell v. Osgood, 3 Pick. 379-384; 2 Stark. Ev. 634; 2 Yeates 473; 3 Binn. 550; Keen v. McLaughlin, 2 S. & R. 469; 10 S. & R. 44; Beehler v. Steever, 2 Whart. 326; Stees v. Kemble, 3 Casey 112; Inman v. Foster, 8 Wend. 602.

The opinion of the court was delivered by THOMPSON, J.

We are to consider the exception in this case in the light presented by the pleadings. It was an ordinary action of slander, for words actionable in themselves. "You" (the plaintiff's wife meaning) "are a d---d whore," were the words as at first laid in the narr., but the collocation was subsequently varied by an amendment, preserving however the same charge in substance.

The first testimony offered by the plaintiffs, and received under exception, was that given by a daughter of the plaintiffs, fourteen years of age at the time of testifying, who said: "About two years ago, Hartranft came and asked her (her mother) if he could not come to see her once in a while — that he could come, and no one would know it. She might live there rent free. We were living in Hartranft's house, in Union township. She told him no."

The words in the narr. were claimed to have been proved in substance as laid, and to have been spoken on or about the 1st of April afterwards. There was a good deal of conflict in the testimony, in regard to whether the defendant made the charge at all or not; but with this we have nothing to do, excepting that it may call for a more careful scrutiny, to see that improper evidence, on which the jury may have acted, instead of regarding the charge alone, was not given.

The value and necessity of pleading rests upon a universally-acknowledged principle of justice, which requires that a party charged shall have notice of the exact charge, so that he may come prepared to meet it. So, too, the charging party is also to be informed of what is relied upon to constitute the defence. Within the limit of the notice, or manifestoes on each side thus made public, the evidence is in the first instance to be brought. In other words, the allegata and probata must agree. To disregard these essentials, is to do away with the value of pleading. Did the evidence offered in this case come within these general principles?

It is contended that it was within the allegata of the plaintiff, as it tended to prove malice, an essential ingredient in slander. But the proposition proved, even if rude, evinced nothing of this. It did not seem to have been made in anger or with intent to insult, however improper it may have been. It certainly was not evidence, per se, of malice. But it is said, that it was evidence of malice in the speaking of the words, as it tended to prove that the defendant knew that the charge he made was false, because of the refusal given to his solicitation.

Grant for the sake of the argument, that it was evidence on this point if it had been in issue — and it would have been exceedingly slight evidence indeed, scarcely a spark; why, or how, did it become necessary to prove it as the case stood? The defendant's only plea was "not guilty." This admitted all that it did not deny. It certainly admitted the falsity of the charge, if proved to have been made, and the law implies malice in making a false charge. It is conceded, that the repetition of the same words after suit brought, or words showing malice but not actionable, before suit, may be given in evidence to prove actual malice. But there is a distinction between that sort of evidence, and proof of good character, or innocence, to raise a presumption of malice. The law presumes the latter, and until it is attacked the presumption stands for proof. It allows proof of actual malice in aid of the legal presumption, to enhance the damages. The rule is laid down in Greenl. on Ev. § 419, thus: "In ordinary cases under the general issue, the plaintiff will not be allowed to prove the falsity of the...