Kimball v. Page

• Decision Date: 15 July 1902
• Citation: 52 A. 1010,96 Me. 487
• Parties: KIMBALL v. PAGE.
• Court: Maine Supreme Court

52 A. 1010

96 Me. 487

KIMBALL

v. PAGE.

Supreme Judicial Court of Maine.

July 15, 1902.

(Official.)

Exception from supreme judicial court, Penobscot county.

Action by Mima F. Kimball, by next friend, against Lillian P. Page. Verdict for plaintiff. Motions and exceptions by defendant overruled.

Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

H. H. Patten, for plaintiff.

F. J. Martin and H. M. Cook, for defendant.

STROUT, J. A careful examination of the evidence fails to satisfy us that the verdict is clearly wrong. The testimony was contradictory. The jury saw the witnesses, and was in a better situation to determine the facts than we can be from a printed report. The motion to set aside the verdict as against evidence cannot be sustained.

There is also a motion to set the verdict aside upon the ground of newly discovered evidence. This relates to alleged conversations between the plaintiff and defendant after the trial, in which it is claimed that plaintiff said substantially that her testimony at the trial was untrue. The witnesses called upon this motion disagree as to important facts; one or more of them saying that plaintiff said at the interview with defendant that her testimony was true, others testifying to same conversation state the contrary. The defendant says she did not send for plaintiff; a witness called by her says she did. There is an air of suspicion attached to this testimony as to the interview between the defendant, a mature woman, and the plaintiff, an inexperienced girl. It seems improbable that plaintiff, after the trial and a verdict in her favor, would voluntarily tell the defendant that her testimony at the trial was untrue in its material points. Strong evidence is required to satisfy the mind that such statements were made. Without fully reviewing this evidence, in view of its improbability, the difference of statement of the various witnesses, the condition, age, and relation of the parties, we are not impressed with the belief that this evidence, if offered on trial, would or ought to change the result. This motion cannot be sustained.

Upon the exceptions, the first count in the declaration charges the slander to be, "Mima stole the pin; Mima must have stolen that pin." In her direct examination plaintiff stated that defendant's language was, "Mima stole the pin." On cross-examination, she said the language was, "Mima stole the buckle." Other witnesses for plaintiff say the language was, "Mima stole the pin." Defendant claimed a variance between the allegation and proof. The presiding justice instructed the jury that "the allegation must equal or exceed the proof; * * * the words must be the same, but they need not be all the words that are alleged." "It would be sufficient compliance if in this case the allegation was, "Mima stole the pin," and the proof was Mima stole; those two words only being sufficient to impute to another the commission of this crime of larceny, that would be sufficient even if the further qualifying words were not used." To this ruling exception is taken.

It is the general rule in actions for slander, where the words spoken are set out in the declaration, that they must be proved strictly as alleged. In the early cases in this country and in England the slightest variation in the words proved from those alleged was held to be fatal. But this, rule has been somewhat modified, and it is now held that ...