Loeb v. Webster

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

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.

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 joined. Such is the ordinary course of procedure, and nothing appears in the record to the contrary. So interpreting the record, therefore, at the time plaintiff stated her case to the jury as to what she expected to prove, the only count in the cause was count 4. In stating the case to the jury, among other things, counsel for plaintiff stated that the evidence was expected to show that while the plaintiff was in a drug store talking with one Wise, he said to her, "By the way, Loeb has gotten some information that you have stolen some diamonds from a doctor." Defendant's counsel interposed the following objection: "We object to that statement as not bearing upon the issue involved in this case, and for the purpose solely of attempting to prejudice this jury; there being no charge in this complaint that Mr. Loeb has charged her with stealing diamonds." The court overruled the objection, and the defendant reserved an exception. In this there was error. There was no issue, as we interpret the record, and as the objection points out, that the defendant had charged the plaintiff with stealing diamonds. As to its prejudicial character, the statement should be construed in connection with the previous remark of counsel calculated to rouse race prejudice.

A week after this alleged slander, the plaintiff testified that she saw Wise at Jacob's drug store, and she detailed the conversation had with Wise, which included the foregoing statement. While no objection was interposed to this testimony, yet we do not find that this failure to object...