47 So. 570 | Ala. | 1908
The third count, as originally filed, is as íoIIoavs : “Plaintiff claims of defendant the like sum of ten thousand dollars, damages for falsely and maliciously charging the plaintiff with the destruction of a certain book or docket or public record belonging to the office of the mayor of Adamsville, by speaking of and concerning him in the presence of divers persons, in the year 1904, in substance as folloAVS: ‘Turner has destroyed the docket in order to cover up the evidence of his misappropriation of public funds and fines belonging to the tOAArn of Adamsville.’ ” The appellant insists that the matter complained of is not defamatory per se, and that to render the count good against demurrer it Avoulcl be necessary to aver extrinsic facts and circumstances, as well as special damages. This criticism of the count is spoken by appropriate demurrer.
The occasion does not require a general consideration of the law applicable to actionable defamation. Our previous decisions sufficiently, for the present purpose, cover that field. The sole question, on this count, is one of interpretation of the language ascribed to the defendant (appellant). To such purpose we must consider the whole expression imputed, and read the Avhole matter in the light of the general, common acceptation
Demurrer was interposed to the third count of the amended complaint, taking the point that in this character of action damages for physical pain and injury, claimed in the count, are not recoverable. This objection, as is the unvarying practice, should have been taken by motion to strike or by charges to the jury. Where questioned elements of damages are too indefinitely or uncertainly claimed, demurrer will be servicable to raise the inquiry; not- so otherwise. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389.
The errors assigned upon the two rulings with respect to testimony are without merit. The trial court doubtless properly exercised its discretion in the allowance of the leading question quoted in assignment numbered 3. The fourth assignment is not supported by the record, in that the agreed bill of exceptions shows that a part only of the answer was moved to exclusion, whereas the assignment embraces the entire response of the witness, the first phrase of which is unobjectionable.
We discover no error in the record, and the judgment is affirmed.
Affirmed.