Aston v. Examiner Printing Co.

226 F. 496 | N.D. Cal. | 1915

VAN FLEET, District Judge.

Application by defendants for a new trial in an action for libel, wherein verdict and judgment were for plaintiff.

[1] While numerous errors are assigned, hut one is urged upon the attention of the court as entitling defendants to a new trial. This error is based upon the claim that the court admitted before the jury evidence in behalf of plaintiff as to his good character or reputation without the same having been first attacked by the defendants; and it is contended that the court therein Violated a fundamental rule of evidence applicable to cases of this character, which should entitle defendants to have the judgment set aside. The basis of the alleged error is this:

During the presentation of the evidence of one Wilsey, the witness had testified that he had employed the plaintiff, a civil engineer, to make an engineering report for him on the character and availability of the properly of the Blue Lakes Water & Power Company on the Mckekrame river — a property that had become incidentally involved in the inquiry — -with a view of using such report for the purpose of promoting a sale of the property to financiers in Europe. He was then asked;

■'Q. 18. Ie whether or not you know the general reputation of Taggart Asiois in the engineering world, meaning thereby among consulting engineers, and among construction engineers, and those engaged in promoting anti construe! big engineering projects in this country and in Europe, or in either of said «euntries, for the truth and veracity of his reports as a consulting en-febieer.'’

To this question the general objection was interposed that it was “immaccria!, irrelevant, and incompetent.” The objection was overruled, and the witness answered:

“its; 1 do.”

He was theu asked;

“Suite what Mr. Aston’?) reputation is in the particulars inquired about in ir.tori egatory No. 18 in any or all of the quartern aforesaid.”

To this question the same general objection was interposed, and, being overruled, the witness answered:

‘•From nil the information that 1 have been able to secure regarding Mr. Aston, both in America and in Europe, tris reputation has been first class.”

These are the only questions to which the court’s attention has been called, put to this or any other witness, bearing on the subject of the objection urged.

Assuming, without deciding, that the rule as to the admissibility of character evidence in such cases is as contended" for by defendants, and thdt it is controlling in this jurisdiction, I am unable to perceive wherein it was in any way violated by the inquiry put to the witness. It is at once apparent, I think, not only from the form of the questions themselves, although somewhat inartificial, but from the general nature of the "subject about which the witness was being examined, that the inquiry was not addressed to the personal character or reputation of the plaintiff, of which complaint was made in Davis v. Hearst, 160 Cal. 185, 116 Pac. 530, relied on by plaintiff, but was solely with reference feo his standing as an engineer, his professional character, as to the propriety of which there can be no question (Turner v. Hearst, 115 Cal. 394, 47 Pac. 129); and I have no doubt that the jury, as did the court, so understood it.

[2] If, however, the evidence is susceptible of a construction which would render it obnoxious to the rule contended for, then I am satisfied that the exception is not now open to the defendants, for want of proper objection when the questions were put. It is quite obvious, I think, that the very general form in which the objection was made, while generically sufficient, was not such as to arrest the court’s attention to the vice now urged. An objection so general as not to call the court’s attention to the particular aspect in which the question is claimed to be obnoxious will not be regarded as sufficient to entitle one to have the exception reviewed.