Loeb v. Webster, 6 Div. 260

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, J.
• Citation: 213 Ala. 99,104 So. 25
• Decision Date: 26 March 1925
• Docket Number: 6 Div. 260
• Parties: LOEB v. WEBSTER.

104 So. 25

213 Ala. 99

LOEB
v.
WEBSTER.

6 Div. 260

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for slander by Effie Webster against Leopold Loeb. Judgment for plaintiff, and defendant appeals. Reversed and remanded. [104 So. 26]

Gibson & Davis, Cabaniss, Johnston, Cocke & Cabaniss and Brewer Dixon, all of Birmingham, for appellant.

Horace C. Wilkinson and Chas. W. Greer, both of Birmingham, for appellee.

GARDNER, J.

This appeal is from a judgment recovered by appellee against appellant in an action for slander. The cause was tried upon the general issue joined on count four; all other counts having been stricken by plaintiff. This count appears in the report of the case.

The words charged to have been used by defendant were not such as capable of an innocent meaning. They clearly charge a crime, an attempt to procure money under false pretense, and were actionable per se. An innuendo was therefore unnecessary, and the demurrer was properly overruled. Berdeaux v. Davis, 58 Ala. 611; Penry v. Dozier, 161 Ala. 292, 49 So. 909; Long v. Musgrove, 75 Ala. 158; form 16, Code 1907, p. 1197.

We think the evidence of the plaintiff in all material respects supported this count, and that no variance appears. The affirmative charge was properly refused. Moreover, no question of variance was presented to the trial court for action thereon as provided by rule 34, 175 Ala. xxi. Charge A given for plaintiff was a correct statement of the law of the case. Age-Herald Co. v. Waterman, 202 Ala. 665, 81 So. 621.

Plaintiff had purchased from the defendant what she insists was represented to be a King Bird of Paradise feather. Her evidence is to the effect that after using it for a length of time she was told it was not a King Bird feather, but a female feather, which is inferior in quality and worth considerably less; that she went to the defendant, to use her language, "merely seeking an adjustment of the purchase price of the feather," whereupon she testifies that the defendant charged her with having "switched the feather," substituting the inferior for the one sold by defendant for the purpose of getting from the defendant the money she had paid for the feather. Plaintiff further states that defendant had "something to say about me trying to cheat him. He told me I had taken the birds out and switched them"--to again use the language of the witness. She further insists that all of this was said in the presence of others; that defendant took the feathers and threw them on the table and told her to leave the store. This briefly states the substance of a charge of slander, upon which the cause was tried as embraced in count 4.

Count 2 of the original complaint also stated an action of slander, in that the defendant charged the plaintiff with having stolen some diamonds. When the complaint, however, was amended by the adding of count 4, this count, with others was stricken.

There were demurrers to the complaint, as well as demurrers to pleas filed by defendant. The last amendment of the complaint was that in which count 4 was added, and the other counts stricken. Demurrers to the complaint were refiled, and the defendant's pleas were refiled, and the demurrers to the pleas were sustained, and those to the complaint were overruled. Whereupon the judgment entry shows issue was joined.

We interpret the record, therefore, as disclosing that all matters of pleading were, of course, settled before issue joined, and that the statement of the case by counsel for the respective parties to the jury were not made until issue was...