McLenahan v. Andrews , 135 Pa. 383 ( 1890 )

Per Curiam:

In the absence of any evidence to the contrary in the record, it must be assumed the learned judge was correct in saying, as complained of in the first specification : “ In their arguments, counsel seem, and properly too, to agree in this, that the sub* stance of the charges contained in the several counts of the declaration, and upon which plaintiff bases her right to a verdict,' is that the defendant declared to one or more than one person, or in their hearing, that she, the plaintiff, had committed the crime of adultery.” Indeed, the defendant’s pleas “privileged1 communication and justification,” and the entire course of the trial down to the close of the testimony, indicate that by common consent the cause was tried on the assumption that the substance of the several counts was as stated in the foregoing excerpt from the charge of the court. In his own testimony, the defendant appears to be anxious to create, the impression that he meant to charge the plaintiff with the crime of adultery, and to that end he went as far as he could without in express terms proving himself her particeps criminis.

After trying the case on its merits, and- on the assumption that the substance of the alleged slander, as charged in the several counts of the declaration, was that plaintiff was an adulteress, it is rather late to escape the consequences of an adverse verdict by technical objections to the sufficiency of either of the counts. If objection had been taken during the trial, it could have been readily obviated by amendment. But, aside from that, the slanderous words laid in the declaration clearly import' a charge of adultery, and would doubtless be so understood by any one who heard them spoken.

The second specification presents another technical point that is utterly destitute of merit. The plaintiff sued with her husband, and throughout the testimony she is referred to as being a married woman at the time the slanderous words are alleged to have been spoken concerning her. The defendant himself,in his effort to besmirch her character, when on the witness stand refers to her as occupying the relation of wife. If it had been necessary to amend tbe declaration, there is sufficient for that purpose in defendant’s ' own evidence. It may be considl ered amended.

From what has already been said, it follows that the third and fourth specifications cannot be sustained. There is nothing in the record of' this unsavory case that requires us to reverse the judgment, and, after a full and fair trial on the merits, we have no inclination to do so.

Judgment affirmed.