Chamberlin v. Vance

By the Couet: The demurrer to this complaint was properly overruled. The complaint avers: 1 ‘ And in that behalf plaintiff further alleges as a fact, that by all the foregoing false, malicious and defamatory words, the said defendant intended to convey the further meaning, and that the said words were by the said persons in whose presence and hearing they were so uttered and published, understood and believed to convey the meaning that the said Eliza J. communicated the fire to the said clothes in the said room No. 2, at the time and place aforesaid, as hereinbefore set forth, and that she, the said Eliza J., was guilty of the heinous crime of an attempt to commit'arson.” It is admissible in actions of slander and libel to aver and prove that words which have a covert meaning were intended to defame, and were under[84]stood in a particular sense by those who heard or read them. (Maynard v. F. F. Ins. Co., 34 Cal. 59.)

The words testified to by the witness Abbott, do not enlarge the meaning of the words of the complaint, if construed in accordance with the averment above recited. The words testified to by the witness were spoken after the commencement of the action, but as they were substantially the same as those declared on, they were admissible to prove the quo animo with which the alleged slander was originally published. The words spoken after were of similar import to those spoken before this action was brought. They may be considered a repetition, and so were admissible on the question of malice. (Kennedy v. Gifford, 19 Wend. 300; Bodwell v. Swan, 3 Pick. 378.) It would, perhaps, have been the duty of the court, had counsel requested it, to charge the jury that no additional damages could be given for the publication of the words spoken after the commencement of the action, as for a publication of a distinct slander, and that they were to be considered only with reference to the motives with which the words declared on were spoken. But the record does not show that counsel so requested.

The fact that the witness Brett had buildings near the hotel, although not of any consequence in itself, might have been admissible in connection with proof of other facts (as that the defendant knew of such ownership), which would show its materiality. But when counsel make an “ offer ” of evidence it must appear that the facts offered to be proven, in connection with facts as to which evidence has already been taken, are relevant; otherwise the court is justified in sustaining an objection to the offer. The offer must be complete in itself, and must not omit facts, without which the facts offered are not relevant.