Davenport v. Patteson , 98 N.J.L. 65 ( 1922 )

The opinion of the court was delivered by

Parker, J.

The plaintiff had a verdict and judgment beiow in a suit for slander, the words charged being: “You are a dirty sneak and a thief.”

We think this judgment must be reversed and a new trial had, because of error in excluding a question asked of plaintiff on his cross-examination.

The date of uttering the words was alleged by plaintiff to have been September 23d, 1919. The suit was begun May 13th, 1921. Defendant claimed that more than two years had elapsed before suit, and that the statute of limitations had run, hut this, of course, was s jury question. On cross-examination the plaintiff was asked a number of questions about the time of different occurrences, and finally the following question was put to him: “Q. Why did you wait until May, 1920 [really 1921], to bring this suit?”

This was objected to, but no ground of objection stated; and overruled, no ground of the ruling being given. The defendant entered an exception, which was not essential under the District Court practice, but is useful as showing that the ruling was challenged.

Subscribing fully to the general principle that the control of cross-examination lies largely within the discretion of the court, as to which authority is superfluous, we, neverthless, think that the court erred in excluding the answer to this question. It was laid down in Prout v. Bernards Land and Sand Co., 77 N. J. L. 719, that cross-examination on matters directly in issue or directly relevant to the issue is a matter of right, and its exclusion is error. One of the matters relevant to the issue was the bona fide character of the suit, and a Jong and unexplained delay of a slandered plaintiff in taking steps to vindicate his reputation and punish the slanderer might well be regarded by the jury as casting a doubt on the good faith of the action. It would be a legitimate and natural subject of comment by counsel in addressing the jury, and was a matter on which counsel was entitled to inquire. Thus, in Wigm. Bv., § 284, under the general heading of conduct as evidence, we find the subhead of “conduct as evidencing a weak cause.” The author says: Tn general, a delay in instituting a prosecution * * * is some indication — perhaps only a slight one in fact — of a consciousness of the weakness of one's cause.” See, also, 40 Gyc. 2492. Questions of this character are common in practice wherever there has been a long delay not sufficient to bring the statute into operation.

This leads to a reversal of the judgment. As the case must be retried, it is fair to the trial judge to say that we find no other trial error in the case before us. Whether the words, said to have been used, as quoted above, were actionable per se, was at least a jury question. Flaacke v. Stratford, 72 N. J. L. 487. In the recent case of Shaw v. Bender, 90 Id. 147, 149, the Court of Errors and Appeals, citing Odg. Lib. & S., says: “It is actionable to call one a thief, and no innuendo is necessary, as larceny is clearly imputed.” When it is considered, that defendant in the case at bar undertook to show in justification that plaintiff had stolen apples out of heris or her husband’s orchard, the propriety of leaving to the jury the question whether the words should be understood as imputing to the plaintiff the crime of larceny, becomes unquestionable.

Eor the error above discussed the judgment wall be reversed.