6 Pa. Super. 182 | Pa. Super. Ct. | 1897
Opinion by
The action is slander. The plaintiff, being upon the witness stand and under examination, was asked, under objection and exception, what his own witness Hinardier, previously examined, had told him the defendant said the same evening the alleged slanderous words had been uttered. The purpose of this offer ivas not stated. We are at a loss to determine in what view of the case the evidence received under this offer was competent. It differed somewhat from the testimony of Hinardier himself but it could not have been offered for the purpose of contradicting him nor yet of corroborating him. Was it intended to be substantive, proof of the slanderous words uttered by the defendant, as laid in the plaintiff’s statement? If so, it was clearly incompetent. The mere fact that what the defendant said to Hinardier had been communicated to the plaintiff had been testified to both by Hinardier himself and by the plaintiff, without objection. That was as far as it was
The alleged slanderous words, as laid in the plaintiff’s amended statement, are as follows : “ I believe -my turkeys are over there; I believe the tenant man took them; I believe I will get a search warrant; I think I know where they are; I think they are in Hinardier’s tenant house; I think I will get a search warrant.” The testimony of the defendant, who was called by the plaintiff, as if under cross-examination, in regard to what he said as to the loss of his turkeys was as follows: “ Q. Did you say to him (Jacob Kohr) talking about Dreibilbis, ‘ I believe my turkeys are over there ? ’ A. I didn’t mention no names. Q. Did you say ‘ I believe my turkeys are over there ? ’ A. I did, yes. Q. Did you say ‘ I believe the tenant man took them ? ’ A. Oh no, no, sir. Q. Did you say ‘ I believe I will get a search warrant?’ A. I did that. Q. ‘I think I know where they are,’ did you say that ? A. No, I didn’t say that. Q. Did you say ‘ I think they are in Hinardier’s tenant house ? ’ A. No.”
It will be readily seen that the words as laid in the plaintiff’s statement and those as testified to by the defendant are essentially'and materially different, and yet in regard to them the court said: “ These words as laid are in themselves actionable, therefore, now are they proven ? I need scarcely say to you that, if you believe the testimony of the defendant himself, you cannot say they are not proven, because he tells you he did say about what is there. And further than that, he went to a magistrate’s office and signed a paper in which he charged this man, the defendant, with the larceny, had a search warrant prepared for him, searched his house (I think you will find from the evidence in his absence, the presence of his wife and child) found nothing and left. He was arrested himself, came here and had a hearing and was discharged for want of evidence to sustain the charge made against him, so that in this case, according to the statements of the defendant himself, your verdict will have to- be for the plaintiff for some amount, and the main question you will have to decide is what that amount shall be.”
In this there was substantial er,ror. The defendant emphatically denied having said “ I believe the tenant man took them.” “I think I know where they aro.” “I think they are in Hin
The trial judge in the court below charged the jury: “ This is a record made against him and will not down. The record is here, remains in this office, and always will show what the defendant here, Mr. Esbenshade, charged him with, and you will have to render such a verdict as in your judgment will compensate him for the injury he has received in his reputation by this charge.” What is the record referred to? Was it the proceedings before the alderman upon which the search warrant was obtained? Technically this was not a record, was notin the court and shows on its face that the charge had been dismissed and the defendant discharged. Wasitthe record of the action of slander then being tried ? The defendant was in no way responsible for that. That was a record for which the plaintiff alone was responsible and we fail to see, in any view of the case, why the language complained of should have been used as substantial ground upon which a verdict could be based.
The three assignments of error, upon which the defendant (the appellant here) relies, are all sustained, and the judgment is reversed and a new venire awarded.