Miller v. Cook

• Decision Date: 27 May 1890
• Docket Number: 14,246
• Citation: 24 N.E. 577,124 Ind. 101
• Parties: Miller v. Cook
• Court: Indiana Supreme Court

24 N.E. 577

124 Ind. 101

Miller v. Cook

No. 14,246

Supreme Court of Indiana

May 27, 1890

From the Pike Circuit Court.

Judgment affirmed.

E. A Ely and J. W. Wilson, for appellant.

F. B Posey, A. H. Taylor and E. P. Richardson, for appellee.

OPINION

Elliott, J.

The appellee recovered judgment against the appellant for damages, upon a complaint charging that the latter had uttered and published slanderous words of her, imputing to her conduct such as a chaste woman would not be guilty of and thus assailing her character for chastity. The questions argued arise on the ruling denying a new trial.

The testimony of the witness Stillwell was competent for the purpose of proving express malice, for it tended to show that the defendant knew that the charges he made against the plaintiff were without foundation. If a defendant makes declarations tending to show that he had such knowledge of the plaintiff's conduct and character as apprised him that charges against her were unfounded he has no reason to complain if his declarations are used as evidence against him. There is no force in the objection that the evidence was not competent at the time it was offered, for, if it be conceded that it was not then competent, still there was no error in this instance, for evidence was subsequently introduced which made it competent.

The deeds executed by the appellant were voluntary, and the evidence tends strongly to show that they were made to defraud the appellee in the event that she should obtain a judgment. At the time the slanderous words were published the appellee occupied the position of a creditor and had a right to prove that fraudulent conveyances were made by the appellant. Bishop v. Redmond, 83 Ind. 157; Shean v. Shay, 42 Ind. 375; Rogers v. Evans, 3 Ind. 574; Wright v. Brandis, 1 Ind. 336; Smith v. Culbertson, 9 Rich. 106; Damon v. Bryant, 19 Mass. 411. But aside from this consideration, the evidence was competent for the purpose of showing the financial condition of the appellant. That such evidence is competent is well settled. Wilson v. Shepler, 86 Ind. 275; Justice v. Kirlin, 17 Ind. 588. Some of the authorities assert that the voluntary conveyance of property after action is threatened or brought is competent as an implied admission, but we do not care to decide anything upon that question, for the evidence was competent upon other grounds, and the ground upon which we hold the evidence competent is, that it tended to show the defendant's financial condition.

James Stevens, one of the witnesses for the appellee, testified as to a conversation which he had with the appellant in March, 1887, and the latter testified that he had no conversation with Stevens in March, and offered to testify that he did have a conversation with him in November, and offered to state what that conversation was. Had Stevens been asked the proper impeaching question it is probably true that the appellant would have had a right to testify as to what was said in November, but no such impeaching question was asked; so that the question is whether the offered testimony was competent as original evidence. It is clear that it was not competent for the defendant to get before the jury his own statements as original evidence. He might have contradicted Stevens as to the conversation testified to by him, but he could not make original evidence his own declarations made in a distinct and different conversation.

The appellant asked a witness called by...