Hereford v. Combs

• Decision Date: 16 May 1900
• Parties: HEREFORD v. COMBS.
• Court: Alabama Supreme Court

28 So. 582

126 Ala. 369

HEREFORD v. COMBS.

Supreme Court of Alabama

May 16, 1900

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by John Joseph Combs against William F. Hereford, Sr. From a judgment entered on a verdict for plaintiff, defendant appeals. Reversed.

This action was brought by the appellee, John Joseph Combs against W. F. Hereford. The complaint in the action was in words and figures as follows: "(1) The plaintiff claims of the defendant two thousand dollars damages for falsely and maliciously charging the plaintiff with perjury, by speaking of and concerning him, in the presence of divers persons, in substance as follows: 'Joe Combs [meaning the plaintiff] swore to a lie' on the 3d day of June, 1898. (2) The plaintiff claims of the defendant the further sum of two thousand dollars, damages for falsely and maliciously charging the plaintiff with perjury, by speaking of and concerning him, in the presence of divers persons, in substance, as follows: 'Joe Combs [meaning and referring to the plaintiff] swore to a lie,'-referring to a trial that took place in the circuit court of Madison county Alabama, at the regular May term, 1898, of said circuit court, on the trial of a cause in which the state of Alabama was plaintiff and Ed. B. Stone was defendant, on charge of grand larceny, and in said cause plaintiff was examined as a witness on the 3d day of June, 1898. (3) The plaintiff claims of the defendant the further sum of two thousand dollars damages for maliciously and falsely, in the presence and hearing of divers other citizens, on the 3d day of June 1898, and at different times thereafter up to the bringing of this suit, while speaking of the trial of the state of Alabama against Ed. B. Stone on an indictment charging grand larceny, had at the May term, 1898, of the circuit court of Madison county, Alabama, and referring to the testimony of plaintiff on said trial, said and charged in substance as follows: 'Joe Combs [meaning the plaintiff] had perjured himself.' (4) The plaintiff claims of the defendant the further sum of two thousand dollars damages, that in certain conversations which the defendant had with various and divers good citizens, between the 3d day of June, 1898, and the 31st day of December, 1898, falsely and maliciously charged the plaintiff with perjury by speaking of and concerning the plaintiff, in substance, as follows: 'Joe Combs [meaning the plaintiff] swore to a lie.' (5) The plaintiff claims of the defendant the further sum of two thousand dollars damages for falsely and maliciously, on divers occasions, and in the presence of many good and worthy citizens, on or about the 3d day of June, 1898, when he (the defendant) spoke of the testimony of the plaintiff in the trial of the case of the state of Alabama against E. B. Stone, at the May term 1898, of the circuit court of Madison county of Alabama charged that the plaintiff had in his testimony committed perjury, in substance as follows: 'Joe Combs [meaning the plaintiff] knew he swore a lie in that case."' To each count of the complaint the defendant separately demurred upon the ground that the language as set out in each of said counts as constituting the ground of action was not such as to render the defendant liable for damages. The judgment entry showing the ruling upon this demurrer was as follows "Thereupon the defendant demurs to the complaint, and upon consideration thereof the said demurrers are overruled and disallowed." The defendant filed three pleas, the substance of which is set out in the opinion. On the trial of the cause it was shown that the alleged slanderous statement made by the defendant, Hereford, was made concerning the testimony of the plaintiff while being examined as a witness on the trial of his son-in-law, Ed. Stone, under an indictment for the larceny of hogs belonging to W. F. Hereford. On the trial of the said Stone for the larceny of the hogs, W. F. Hereford, as a witness for the state, testified that, on the preliminary trial of said Stone, J. J. Combs, the plaintiff in the present suit, came to him and sought to compromise the prosecution against said Stone on the charge of larceny. J. J. Combs, as a witness for the defendant in the case of State v. Stone, testified that W. F. Hereford approached him and proposed a compromise of the transaction. It was then shown that at the time of making this testimony the said W. F. Hereford stated in open court that the said J. J. Combs had just "swore to a lie." It was further shown by the evidence that the said Hereford made a like statement to several different witnesses, and on several different occasions. The defendant, Hereford, as a witness in his own behalf, admitted the making of such statement, and further testified to facts showing that the said Combs did come to him and offer to compromise the prosecution, and that he (Hereford) would not do so. There were several other witnesses introduced by the defendant, whose testimony was that the said Combs came to the defendant, Hereford, and proposed to compromise the prosecution against Stone, and that, notwithstanding these facts, Combs testified as a witness in the case of State v. Stone that the defendant proposed the compromise to him. Dr. McKelvey, as a witness for the plaintiff, testified that he heard the defendant say that Combs swore a lie on the Stone trial, and that at the time of making this statement the defendant was in the court-house yard on the day of the trial of said Stone. This witness was then asked by the plaintiff's attorney the following question: "What was Hereford's manner when he said Combs swore a lie?" The defendant objected to this question, as calling for illegal, immaterial, and incompetent evidence. The court overruled the objection, and the defendant duly excepted thereto. The witness answered that "Hereford was gesticulating and was very rough." The defendant moved to exclude this answer upon the grounds that it was immaterial, illegal, and incompetent testimony, and duly excepted to the court's overruling his motion. Upon the examination of several witnesses for the plaintiff, they were each asked the following questions: "Do you know Combs' general reputation for truth and veracity in the community where he lives, and, if so, is it good or bad?" The defendant objected to each of these questions, as asked of the several witnesses, on the ground that it called for illegal and incompetent evidence, and because no evidence had been introduced tending to impeach Combs' character. The court overruled the objection to each of the questions, and the defendant separately excepted to each of such rulings. Each of the several witnesses to which said questions were propounded testified that his character for truth and veracity was good. During the examination of several of the witnesses, each of them was asked the following question: "Was it, or not, generally circulated in the community in which Combs lived that Hereford had charged Combs with swearing to a lie on the Stone trial?" The defendant objected to each of such questions because it called for hearsay, illegal, and incompetent evidence. The court overruled each of the objections, and to each of such rulings the defendant separately excepted. During the examination of the defendant, Hereford, as a witness in his own behalf, and after he had testified to the making of the statement that the plaintiff in the present suit swore to a lie on the trial of Stone for the larceny of his hogs, he was then asked by his counsel the following question: "Did or not James E. Popejoy come to you on the day of the preliminary trial of Ed. Stone at New-market, at the request of Combs, and ask you, for Combs, if you would not compromise?" The court sustained the plaintiff's objection to this question, and to this ruling the defendant duly excepted. Upon the cross-examination of the defendant as a witness, he was asked by the plaintiff's counsel if he was not "the prosecutor of Ed. Stone when he was tried for stealing his hogs." The defendant objected to this question as calling for illegal and incompetent evidence, and duly excepted to the court's overruling his objection. Upon the witness answering that he was, he was then asked the following question by the plaintiff's attorney: "When you prosecuted Stone, you knew he was Combs' son-in-law, did you not?" The defendant objected to this question upon the same grounds as were interposed to the other, and duly excepted to the court's overruling his objection. F. G. Hereford, who was the son of the defendant, W. F. Hereford, testified, as a witness for the latter, that Combs came to him on the day of the preliminary trial of Stone, and asked him to get his father, the defendant, to compromise; that, upon being told that he could not do so, Combs asked him who was a good man to go to his father with such a proposition, and, upon his telling him that James E. Popejoy would be, Combs then went to Popejoy. On the cross-examination of this witness, he was asked if he was not on Stone's bond. The defendant objected to this question as calling for illegal and irrelevant evidence, and duly excepted to the court's overruling his objection. James E. Popejoy, as a witness for the defendant, testified that Combs came to him on the day of the preliminary trial of Ed. Stone on the charge of larceny, and requested him to go to the defendant, Hereford, and see if he could not get him to compromise the Stone case; that he went to Hereford, but he declined...