Pier v. Speer

73 N.J.L. 633 | N.J. | 1906

The opinion of the coiLrt was delivered by

Vredenjburgh, J.

The principal points assigned and urged as grounds of error relate to the rulings of the court on the admissions and rejection of evidence.

As to the admission of the conversation by defendant in the committee-room, it- is apparent that the objection was addressed solely to the discretion of the trial court, and the overruling of defendant’s objection that the whole circumstances should first be shown worked him no injury. The court subsequently charged the jury upon that subject in his favor and without exception by him.

The defendant’s exception to the ruling of the court lastly above set forth cannot be sustained under the well-settled rules of practice. Two distinct subjects are embraced in one bill of exceptions. It was long ago held that “a bill of exceptions must distinctly state and specify each exception, so as to show that the mind of the trial judge was particularly called to each several objections.” It is impossible to determine, from the frame of this exception, whether the trial judge intended to sustain the objection to the question propounded to the witness or to the offer by the defendant to show that the defendant had a bad disease. In Packard v. Bergen Neck Railway Co., 25 Vroom 229, 553, Chief Justice Beasley’s comment that “this bill of exceptions was multiform when it should have been single, and'was general when it should have been specific," Jits the case in hand. And on the review of the Packard case, Mr. Justice (now Chancellor) Magie, delivering the opinion of this court, said: “Obviously such an exception, while logically asserting the error of each of the propositions of law involved, is considered unavailable, because the objection has not been leveled at a specific and distinct error, and the attention of the judge has not been called to the precise point of the objection.”

But if we should pass to the consideration of the merits of these offers, as if both had been duly overruled under exceptions properly taken, they will be found to lack legality. If their object was to show a particular fact against the plaintiff’s character for chastity, they cannot be supported upon the defendant’s plea of justification, because there was no proposal, not even a suggestion, that they would’be followed by other testimony showing that the imputed disease was contracted by the plaintiff out of lawful wedlock, or by illicit intercourse with another than her husband. The rejection of testimony as to a solitary circumstance, which is incompetent unless other testimony be supplied, is not, in the absence of any offer to supply it, legal error. The proffered fact, standing alone, was as consistent with the plaintiff’s chastity and morality as with the want of it.

Nor were these offers admissible in mitigation of damages.

It has been the accepted law of this state ever since Sayre v. Sayre, 1 Dutcher 235, that in actions for slander only evidence of the plaintiff’s general had character was admissible. Chief Justice Green considered it not open to question that “evidence of particular facts is excluded. * * * Where the evidence is introduced for the purpose of mitigating damages, on the ground that the plaintiff’s reputation has sustained but little injury, the plaintiff’s general charr acter alone should form the subject of examination. The question is not what may have been his character in any given particular, but what was the estimation in which he was held among his neighbors and acquaintances.” See, also, citations Steph. Dig. Ev. (Beer's New Jersey ed., 1904) 303.

The law assumes a good character to be of value to every man. It presumes that every man is of good name and fame until the contrary is proved. The trial court in its charge to the jury stated the law differently — deprived plaintiff of the benefit of this presumption — and fell into error on this subject, the words used being: “The law does not presume it (plaintiff’s reputation) was bad or was good; there is no presumption of law'.” Of this, however, the defendant, in whose favor the mistaken direction stands on the record, cannot take advantage, and has not complained.

The errors assigned upon the refusal of the court to non-suit, as wrell as to direct a verdict for1 the defendant, are. not well taken. If the evidence offered by the plaintiff was entitled to credence, the cause was properly advanced to the jury-box, and the direction of a verdict for the defendant became legally unwarrantable. There is strong reason to infer from the evidence that the utterances by defendant concerning the plaintiff proceeded not from honest motives, but from malice and a desire for revenge against her. That motive having been displayed by him on a prior occasion, when he had made, if the plaintiff is to be believed (and that wras for the jury), improper proposals to her, which she rejected, followed by a threat from him that he “would get even with” her. The defendant’s denial in his testimony of this charge does not, under his subsequent admissions, appear to carry weight, with it. His cross-examination, in highly important- respects, discredited his truth and accuracy. Eor instance, he swore, on his main examination, that the plaintiff’s child (the-birth of which resulted in the action of'the township coinmittee, and'was the foundation of his remarks in the committee-room respecting the plaintiff), was born five months after the husband’s death. On his cross-examination he was apparently forced to contradict himself, and to admit that the child was born before the husband’s death, and that he knew this because he was at the house several times before the husband died and knew of and reported its birth to the committee. He also admitted that the plaintiff Jirrself had not been supported by the township. She applied for her children only, and they were the recipients of public help. This situation seems to have escaped the attention of tire trial court. That they, or any of them, had been born bastards was not established in evidence by the defendant, nor was there any testimony tending to prove such a charge. .No order of filiation had been applied for and no proceedings to settle their paternity had been had or taken. They had been born during a presumptively lawful wedlock, and even if their legitimacy had been at all doubtful it was no concern either of the defendant or of the township committee. His duties as an overseer of the poor are laid down by law. Gen. Stat., pp. 2505-2509. Wien persons applied to him for relief it became his duty to apply to a justice of the peace of the township, and jointly with him “inquire into the state and circumstances” of the person so applying, and after obtaining the justice’s order for relief in writing, directing the allowances in the form required by the statute, to obey such order. The legal duty of the township committee was to pay the amount of the relief out of the funds raised for the relief of the poor, &c. Gen. Stat., p. 2518. Neither the duties of the overseer nor of the township committee contemplated, much less compelled him, or them, to inquire into the chastity or attempt to regulate the moral character of the mother of such children. Their communications concerning her, whether made in or out of the committee-room, were not privileged. The “state and circumstances” of the children-applicants for relief alone were the proper subjects of consideration by’ the authorities. The more immoral and shiftless the parents, the more need of kind help and care for their children. The conduct of the defendant in uttering these malicious falsehoods (as the jury have found them to have been) concerning the character of this woman, whose necessities forced her, for the sake of her children, to come in contact with him, was, under the evidence, without the slightest justification in law. The defendant’s motions under consideration were properly denied by the trial court, and the judgment below should be affirmed.

For affirmance — The Chancellor, Chief Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Green, Gray, Dill. 15. For reversal — None.