104 P. 458 | Cal. | 1909
This is an action for damages for slander. The jury rendered a verdict in favor of plaintiffs for one thousand dollars, and judgment was entered accordingly. Defendant appeals from the judgment and from an order denying her motion for a new trial.
Two points are made for reversal.
1. The complaint alleged the making of certain charges by defendant against plaintiff Bessey Fleet to different persons at different times. The trial court held the evidence insufficient to make a case for the jury except as to one of the charges, and the specific charge upon which the verdict and judgment must rest is stated in the complaint as follows, viz.: "That on an occasion in the month of June, 1905, at said city of Long Beach, in the hearing of Dr. J.M. Holden, a physician residing in said city, defendant spoke of and concerning plaintiff Bessey Fleet the false, malicious and scandalous words following, to wit: `Mrs. Fleet entered my house and stole some of my jewelry, and still has it'"; and also, "that in using the words alleged . . . defendant meant and intended to charge said plaintiff with the commission of a felony, to wit: burglary, and defendant was so understood by those in whose hearing she so spoke as above alleged."
The only evidence given on the trial to substantiate the allegation as to the making of this statement is that of Dr. J.M. Holden. So far as material to the question presented, he testified that Mrs. Tichenor came to his office, knowing that he was Mrs. Fleet's physician, and suggested that she thought he might be able to ascertain, when treating Mrs. Fleet, whether she had any of her jewels secreted about her person. On that occasion, she told him what jewelry had been stolen from her house. He further testified: "Well, she told me where she left the key, in a clothes bag or clothes basket, *345 something like that, where her soiled linen was kept. The key was kept in the bottom of that receptacle, and the key had been removed from this, and the door opened, the jewelry taken, and the door locked again, and the key put back in such a manner that she herself did not notice that it had been disturbed until a day or two afterwards. She asked if I had noticed anything when treating Mrs. Fleet, or if I could not make arrangements to make examination or to find out about her person, if I could find any of the jewels secreted about her. Mrs. Tichenor told me that the property consisted of jewelry. . . .
Q. ". . . What did she say as to Mrs. Fleet in connection with the burglary . . ."
A. "Mrs. Tichenor made the out-and-out statement it was Mrs. Fleet that had taken the jewels. I remember asking her if she really thought so, or believed so, and she said she knew it. . . . I think she made the remark that Mrs. Fleet was the only one that knew where she kept the key."
Learned counsel for defendant claims that the evidence of Dr. Holden does not constitute evidence of the slander charged, in that it does not show the speaking of words either literally or substantially the same as the words charged in the complaint to have been spoken by defendant, and that, therefore, there was a complete failure of proof. This point was made on the trial by motion to strike out the evidence of Dr. Holden, and also on motion for nonsuit.
We are satisfied that this contention must be sustained, if we are to follow the rule laid down by text-writers and decisions generally. The ancient rule that in actions of this character all the precise words alleged must be proved has been somewhat relaxed, it is true, but not to an extent sufficient to sustain the judgment in this case. It is now, and long has been, the generally accepted rule that where the defendant is charged with the speaking of certain specified slanderous words, it is sufficient to prove the substance of the precise words alleged, but by this is meant, according to the overwhelming weight of authority, not that it is sufficient to show the speaking of other words which would produce an impression similar to that which the words alleged would produce, but, as was said by Justice Taggart in the opinion rendered by the district court of appeal in this case: "Substantial *346
proof of the words only is required as distinguished from a literal proof of the words alleged in the complaint, as was the original rule. The rule is not that the substance of the words alleged must be proved, but that the words alleged in the declaration, or enough of them to amount to a charge of the particular offense alleged to have been imputed, must be substantially proved." In other words, so many of the words alleged in the declaration "as constitute the sting of the charge" (Smith v. Hollister,
We cannot see that it avails plaintiff in this connection that she further alleged "that in using the words alleged . . . defendant meant and intended to charge said plaintiff with the commission of a felony, to wit: burglary, and defendant was so understood by those in whose hearing she so spoke as above alleged." Without proof that she spoke the words alleged, this allegation has no application.
As was said by the district court of appeal in this case: —
"Under the liberal rule relative to the allowance of amendments to pleadings in most jurisdictions a variance may easily be corrected, if the evidence is objected to upon its introduction, and thus the apparent hardship of the rule may be relieved from in all cases where a probable cause of action exists. (Ranson v.McCurley,
"There need not be a failure of justice even though the discovery of the variance is not made until the reversal of the judgment, if the case be otherwise a proper one. (Kenney v.Parks,
2. The trial court sustained objection to two questions asked the defendant as to whether or not she was actuated in anything she had said or done by any wish or desire or any design or purpose to injure plaintiff. The questions were proper, both to show absence of actual malice for the purpose of avoiding exemplary damages and under the defense of privileged communication, and the court erred in overruling them. The general rule is well settled that, under our system, a witness may be examined as to the intent with which he did a certain act, where that intent is a material thing in the action. A jury or trial judge is not bound, of course, to believe the witness when he says he did not have a certain intent, but may find in the circumstances, actions, and language an entirely different intent, but the testimony of the witness "is competent and relevant and not immaterial." (See Walker v. Chanslor,
The judgment and order denying a new trial are reversed.
Shaw, J., Sloss, J., and Henshaw, J., concurred. *349
