Beers v. Payment ( 1893 )

Grant, J.

The slander alleged in this case is that defendant said to one Tressa Ehlert:

“You will soon have a kid of your own. You are in the family way by Archie Beers [meaning the plaintiff]. You were in the shavings Avith Archie Beers until 10 or 11 o’clock.”

Defendant pleaded the general issue. He denied using the language stated, and testified that he said to her:

“My little girl, unless you mend your ways, before a great while you may have one of your own.”

• The conversation was occasioned by Miss Ehlert going to' the shop where defendant was at Avork, and carrying in her arms her nephew, a baby. The shop was owned by William R. Beers, the brother of plaintiff. He had had several girls in his employ, among whom was Miss Ehlert. Several of the witnesses either were or had been employés. of William R. Beers.

The defendant introduced evidence tending to show that plaintiff and Miss Ehlert were alone in one of the shop rooms one evening till between 9 and 10 o’clock, and that they were seen in a compromising position, which defendant claims was the occasion for the remarle made to her. Plaintiff and Miss Ehlert testified that they’ Avent there to get the pay that was due them. This testimony was elicited upon cross-examination by defendant’s counsel. 'On redirect examination, Mr. Sloman, plaintiff’s counsel, sought to show how much was due and how long it had been due. This testimony was excluded. The fact.that plaintiff and Miss Ehlert asked for their pay on the night in question, that something was due them, and that Mr.. Beers refused payment, is conclusively, shown by the testimony of Mr. Beers himself. It was entirely immaterial how much was due, or how long it had been due.

William B. Beers, a witness for the defendant, had testified on direct examination to the conversation between defendant and Miss Ehlert. On cross-examination plaintiff’s counsel, referring to this conversation, asked: “ Just tell what he said to her, and what she said in reply.” The court, on its own motion, excluded the question on the ground that the witness had been over, it before on direct examination. This was error. Zucker v. Karpeles, 88 Mich. 413. The réason for the admission of such testimony is stated upon page .424 of that case.

A witness for the defendant, Miss Shetler, testified on cross-examination that she had conversed with plaintiff and his wife in regard to plaintiff’s alleged conduct with Miss Ehlert. Plaintiff’s counsel then asked her:

“ They had learned that you had been talking to Payment about them, and they came up there to find whether it was so; isn’t that it?”

No objection was made to this question, but the court said, “ She has not said anything of the kind, and you have no right to put words into her mouth which she has not said,” and excluded the evidence. We see nothing, objectionable in the form of the question. ■ It was proper cross-examination, and should have been admitted.

We are not to be understood as holding that a court should not, under some circumstances, upon its own motion, reject incompetent or immaterial evidence.

Eor these errors the judgment must be reversed, and a new trial granted.

The other Justices concurred.