Harter v. Whitebread , 1909 Pa. Super. LEXIS 84 ( 1909 )

Opinion by

Head, J.,

This was an action for slander. The plaintiff alleged the utterance, by the defendant, of certain statements, “imputing the crime of adultery on the part of this plaintiff,” she being a married woman. The plaintiff testified that having heard of a story, circulating in the community reflecting on her character for chastity, she and her husband began an investigation to ascertain whence the alleged slanderous utterance had come. That after interviewing several persons, including one Abram White-bread, a relative of the defendant, they had reached the conclusion the defendant was the source of the injurious statement. That they then went to him and charged him with having given circulation to the language contained in the declaration and he admitted having done so. She then proved by two other witnesses that at different times the defendant, to them or in their presence and hearing, had made public the same story.

The defendant admitted on the stand that he had told a story, in substance like the one charged but differing in some details. It appears that he talked Pennsylvania Dutch. The testimony was all submitted to the jury without very much elabbration by the learned trial court, and we can see no reason for perpetuating it by a detailed reference to it here.

The first assignment complains that the charge was inadequate in that it did not call the attention of the jury to the difference in the language admitted by the defendant and that charged in the statement and testified to by plaintiff and her witnesses; and in assuming that the words charged were admitted or conclusively proven. The court was not asked to specially present to the jury this difference now alleged to be important. It may well be, in the absence of such request, the learned trial judge did not apprehend that, where a woman’s reputation for chastity was being attacked, it made much difference whether the locus in quo was described in the language of the declaration or of the defendant; nor that the extent of the injury done to her good name would vary, appreciably, whether the wrong doing imputed involved two men or only one. The law in such a case deals with the substance of the injurious charge rather than with the form or letter of it. Ordinarily so long as the variance is not of substance the defendant cannot be injured.

The court, after briefly sketching, in narrative style the nature of the case and the manner in which the defendant’s responsibility was ascertained plainly told the jury: “In this connection I will state that anything I say with reference to the testimony is only for the purpose of applying the rules of law applicable to it and is not a conclusion because it comes from the court. Your determination is conclusive as to the truth of the testimony.” Under these circumstances we are unable to see wherein the testimony of the defendant was improperly treated by the court and the first assignment is dismissed.

The second assignment alleges that “the court erred in presenting to the jury testimony of the plaintiff and her husband respecting her conversation with Abram Whitebread as proof of what the defendant said to the latter.”. The plaintiff and her husband were permitted, without objection, to relate their conversation with the person named in the course of the investigation which led them to the defendant. The court in the charge relates this conversation, as detailed by the plaintiff, as part of her history of the case. “She said .... that there at that time he (Abram Whitebread) told her the story she heard was in circulation. He said that Albert (the defendant) came to his mill and .... told him in Pennsylvania Dutch certain words, what they were you must determine, and which are alleged in this declaration as I have read.” The court, it is to be observed, did not undertake to give to the jury, what in fact had been there told to the plaintiff, to wit, the words charged; but only what “she,” the plaintiff, said had been told her, which was substantially the language contained in the statement. Taken in connection with what immediately followed in the charge as to the visit of the plaintiff to the defendant; her accusation of him then and there as the author of the injurious slander, and her testimony as to his admission and refusal to make any reparation, we cannot find any warrant for the assumption that either court or jury misconceived the true relation to the case of the plaintiff’s conversation with Abram Whitebread. Had counsel for the defendant so understood the charge when delivered, the attention of the court should have been called to the fact. No special exception taken to the charge indicates that it was then so understood. No such reason appears among the many advanced for a new trial. The second assignment is dismissed.

The third assignment is sufficiently answered by the charge itself and such comments as we have already made on it. Nor can we find any merit in the fourth. The witness was called for the sole purpose of contradicting a statement imputed to him by the plaintiff in her testimony. He was permitted to do so in the manner and form approved by the best practice. If the defendant desired to elicit from him his version of the entire conversation with the plaintiff, he should have been called in chief.

The learned trial judge, after explaining to the jury the difference between punitive and compensatory damages expressly instructed them that if they found for the plaintiff they should confine themselves to damages that-would be compensatory only. The injury sustained by a slandered plaintiff does not wax or wane according to the financial standing of the owner of the tongue that circulates the slander. The plaintiff had made no effort to swell her damages by showing that the defendant was rich; he could not diminish what would be compensation by showing that he could not easily pay. The refusal of the offer which constitutes the fifth assignment was therefore right. The third, fourth and fifth assignments are dismissed.

Judgment affirmed.