Tokmakian v. Fritz., 8993.
| Decision Date | 21 July 1949 |
| Docket Number | No. 8993.,8993. |
| Citation | 67 A.2d 834 |
| Parties | TOKMAKIAN v. FRITZ. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Providence and Bristol Counties; John E. Mullen, Judge.
Action of trespass on the case for slander by Nellie Tokmakian against Bessie Fritz. To review an adverse judgment, defendant brings exceptions.
Defendant's exception to denial of her motion for a new trial on ground of excessive damages sustained, and all other exceptions overruled, and case remitted with direction.
Arcaro, Carty & Belilove and Joseph B. Carty, Providence, for plaintiff.
Harold H. Winsten and Robinson, Robinson & Adelson, Providence, for defendant.
This action of trespass on the case for slander was tried in the superior court before a justice sitting with a jury, which returned a verdict for the plaintiff for $400. It is here on defendant's bill of exceptions, which consists of exceptions to certain evidentiary rulings of the trial justice, to the refusal of said justice to give to the jury certain instructions as requested by the defendant, and to the denial of defendant's motions for a directed verdict and for a new trial.
The first count of the declaration charges the use of the words ‘drunken driver’ while the second count charges that defendant referred to the plaintiff as an ‘Armenian nigger.’ At the conclusion of plaintiff's evidence the trial justice granted defendant's motion for a nonsuit as to the second count, and the case was submitted to the jury on the first count only.
The plaintiff is a middle-aged woman of Armenian extraction and the defendant, an older woman, is of Swedish descent. Plaintiff presented testimony to the following effect. She and the defendant were neighbors living on Central avenue in the city of Pawtucket in this state. About a year and a half before the incident complained of, defendant's daughter, Mrs. Nellie Gaff, and her family, who were living in the plaintiff's house, had been evicted therefrom on the ground of a nuisance; thereafter they lived with defendant in the house adjoining plaintiff's property and plaintiff claimed there was an unfriendly feeling between the parties which manifested itself from time to time.
Between 4 and 4:30 o'clock in the afternoon of June 12, 1947, while plaintiff was in her own yard, she overheard her first-floor tenant, Albert Hargreaves, talking with defendant. She claimed that she overheard the latter's remarks addressed to Mr. Hargreaves to the effect that plaintiff ‘wasn't Armenian and didn't belong in that section.’ The plaintiff then walked over to the defendant and called her a ‘troublemaker’ and a ‘dirty lady.’
Plaintiff testified that when she looked toward the defendant, the latter stated that she knew all about her, that she was a ‘drunk driver’ and an ‘Armenian nigger.’ Plaintiff's son Aram and William Caldwell, a friend who was visiting him, were both near an open window in plaintiff's house and claimed to have overheard defendant address the plaintiff in the language alleged by her. There was testimony that plaintiff owned and operated an automobile, and held a driver's license. Plaintiff claimed that her health was affected; that she was obliged to consult a physician; and that she was shunned by her friends and neighbors, who had heard about the name calling which is made the basis of this suit.
The defendant and four witnesses, including plaintiff's tenant Albert Hargreaves, testified to the conversation between plaintiff and defendant, and they all denied that defendant had used the words alleged in the declaration. Both plaintiff and defendant testified that they had not spoken to each other since the date of the dispute involved herein.
We have examined the exceptions of the defendant which relate to questions involving plaintiff's reputation, to which the trial justice sustained plaintiff's objections. Since damage to her reputation was the gist of the plaintiff's claim, evidence of such reputation was clearly admissible in the instant case. But the inquiry must be confined to general character or reputation. Folwell v. Providence Journal Co., 19 R.I. 551, 37 A. 6.
The questions objected to were not supported by a proper foundation. Three of them were asked of a witness who had testified that she knew nothing about the plaintiff and that she had never spoken to her. She was then asked whether the plaintiff was considered to be a woman like the defendant, that is, whether she had the same reputation. Then followed the question: ‘What do you consider the reputation of Mrs. Tokmakian to be in the neighborhood?’ Another question asked was: ‘Have you spoken to any people about Mrs. Tokmakian, and have you any idea of what her reputation in the neighborhood it?’ Such questions on the basis of the witness' admitted lack of knowledge...
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...sought, in the charge as given to the jury. Allen v. John Hancock Mutual Life Ins. Co., 92 R.I. 213, 167 A.2d 752; Tokmakian v. Fritz, 75 R.I. 496, 67 A.2d 834; Boettger v. Mauran, 64 R.I. 340, 12 A.2d Finally petitioner says that the trial justice abused his discretion and therefore erred ......
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