51 Cal. 75 | Cal. | 1875
The demurrer to this complaint was properly overruled. The complaint avers: 1 ‘ And in that behalf plaintiff further alleges as a fact, that by all the foregoing false, malicious and defamatory words, the said defendant intended to convey the further meaning, and that the said words were by the said persons in whose presence and hearing they were so uttered and published, understood and believed to convey the meaning that the said Eliza J. communicated the fire to the said clothes in the said room No. 2, at the time and place aforesaid, as hereinbefore set forth, and that she, the said Eliza J., was guilty of the heinous crime of an attempt to commit'arson.” It is admissible in actions of slander and libel to aver and prove that words which have a covert meaning were intended to defame, and were under
The words testified to by the witness Abbott, do not enlarge the meaning of the words of the complaint, if construed in accordance with the averment above recited. The words testified to by the witness were spoken after the commencement of the action, but as they were substantially the same as those declared on, they were admissible to prove the quo animo with which the alleged slander was originally published. The words spoken after were of similar import to those spoken before this action was brought. They may be considered a repetition, and so were admissible on the question of malice. (Kennedy v. Gifford, 19 Wend. 300; Bodwell v. Swan, 3 Pick. 378.) It would, perhaps, have been the duty of the court, had counsel requested it, to charge the jury that no additional damages could be given for the publication of the words spoken after the commencement of the action, as for a publication of a distinct slander, and that they were to be considered only with reference to the motives with which the words declared on were spoken. But the record does not show that counsel so requested.
The fact that the witness Brett had buildings near the hotel, although not of any consequence in itself, might have been admissible in connection with proof of other facts (as that the defendant knew of such ownership), which would show its materiality. But when counsel make an “ offer ” of evidence it must appear that the facts offered to be proven, in connection with facts as to which evidence has already been taken, are relevant; otherwise the court is justified in sustaining an objection to the offer. The offer must be complete in itself, and must not omit facts, without which the facts offered are not relevant.
The whole conversation between defendant and the witness Wyman, as well as the triplicate occupation of the latter—county judge, publisher of a newspaper, and insurance agent—seem to have been made known to the jury. Under the circumstances, we are not prepared to say that the witness might possibly have omitted a part of the conversation, which would have indicated more clearly that the
Tke court below properly rejected evidence of rumors of plaintiff’s guilt. (Wilson v. Fitch, 41 Cal. 384.)
We think tke second instruction of tke District Court is not obnoxious to the criticism to which it has been subjected by appellant, and tkat tke seventh instruction given at tke request of plaintiff, is not erroneous. Facts were alleged in tke answer which, if true, would tend to prove tke plaintiff guilty of setting tke fires. Tke court could have assumed tke existence of suck allegations, and have based its instructions on them. Tke mere circumstance tkat it put tke matter to the jury hypothetically, “If you find tkat defendant has alleged” suck facts, etc., could not have misled the jurors. In principle, the charge was correct. If tke defendant willfully alleged tke existence of suck pretended facts, not believing or having no reason to believe them to be true, this might properly be considered by tke jury as showing a continuing and express malice. Tke defendant in an action of slander cannot abuse kis privilege of pleading any appropriate matter as a bar, or in mitigation of damages, by spreading on tke record a renewed wanton and malicious assault upon tke reputation of kis adversary.
Judgment and order affirmed.
By the Court, on petition for rehearing:
Tke action is for slander, and tke verdict was for the plaintiffs for $5000 “gold coin.” In entering tke judgment tke court disregarded so muck of tke verdict as calls for gold coin, and entered a judgment for tke $5000 generally, without specifying any particular kind of money in which it shall be paid. In tke petition for a rehearing, our attention is specially called to this point, and tke judgment is claimed to be erroneous as not in accordance with tke verdict. Tke same point was raised in Watson v. S. F. and H. B. R. R. Co. (50 Cal. 524), in which we held that tke*86 course pursued by the court below is the proper one in such cases.
Rehearing denied.
