Newman v. Stein

• Decision Date: 21 June 1889
• Court: Michigan Supreme Court
• Parties: NEWMAN v. STEIN.

42 N.W. 956

75 Mich. 402

NEWMAN v. STEIN.

Supreme Court of Michigan

June 21, 1889

Error to circuit court, Kalamazoo county; BUCK, Judge.

LONG J.

Plaintiff recovered six cents damages in an action on the case for slander against the defendant in the Kalamazoo circuit court and brings the case to this court by writ of error. It appears that the plaintiff, who is 24 years of age, and a single woman, lived with her mother, Mrs. Newman, and a little nephew on an adjoining lot to the defendant in the city of Kalamazoo. The defendant is a married man, his wife and several children constituting his household. On July 18 1887, some difficulty arose between the two families during the absence of the defendant. On his return in the evening he found his daughter in tears, and then learned from his family that the plaintiff, in an altercation about the children, who were playing on the sidewalk, had called his wife and daughter some vile names, and when he at once stepped out of his door and to the fence between the two places, and called to the plaintiff, who, with her mother, went out to the fence, where the defendant was standing. Here it is claimed by the plaintiff the defendant applied to her several vile and opprobrious epithets, imputing to her a want of chastity in the presence and hearing of a large number of people. On the trial the defendant did not attempt to justify the speaking of the words either by his plea or in his testimony and there is no dispute in the record but that the character of the plaintiff is above reproach. The defense set up was that the plaintiff had only a short time previous, and on the same day, applied several names to the wife and daughter of defendant imputing to them a want of chastity; that this grew out of a quarrel with the children, in which the little nephew of the plaintiff was involved; that defendant, coming home, and learning of the transaction, and while angry from its repetition to him by his family, went out and called the attention of the plaintiff and her mother to what had been told him by his family. It is claimed by the defendant that the plaintiff did not deny the charges made by him, but reiterated the same, when he spoke the words imputed to him by plaintiff; claiming, however, that he did not speak them of and concerning the plaintiff, but that all the words spoken by him had reference to a sister of the plaintiff, the mother of the plaintiff's little nephew, who was not present there. Upon the issue so made the court submitted the case to the jury. The court instructed the jury, among other things: "If you are satisfied by a preponderance of evidence that the language charged in the declaration, or any part of it, was used toward the plaintiff by the defendant, it imputed to her a want of chastity, and the words would be actionable in themselves, and entitle the plaintiff to recover. *** If the words were spoken of and concerning plaintiff's sister, and not of the plaintiff, then you must acquit."

The contention of counsel for the plaintiff is that, while the plaintiff was on the witness stand, being examined as a witness in her own behalf, the court ruled out a portion of her testimony; that the testimony was competent for the purpose of showing that it was the plaintiff to whom the defendant addressed his words, and not of her sister. The plaintiff testified: "I heard him say if the God damned bitch comes out here I will tell her what she is. He was looking at me when he said that. I stepped out on the porch, and said: 'Mr. Stein are you talking about me? If you are, anything you say about me I will make you prove.' He said: 'I will, and I can,-every word of it.' Then I stepped out. He called me over to the fence. He told me to come over to the fence, and he would tell me what I was. I went over near the fence. He next said: 'I ain't forgotten what you did at Rome city. The conductor that had you out on the island all day is right here. He will prove it, and so will I."' Here the witness was interrupted by defendant's counsel by the claim that this was not under the issue made, and this part of the testimony of the plaintiff was stricken out under such objection, to which counsel for plaintiff excepted.

It appeared that no such charge was made by the declaration, and for that reason the testimony was excluded by the court. Plaintiff's counsel contends, however, that if he should have been permitted to show the whole conversation, and his charge against the plaintiff at Rome city, on the train, and other...