Fleming v. Albeck

Myrick, J. Action for libel. The alleged libel consists in the publication of a card in which the plaintiff was charged with having accused the defendant of setting fire to his (the defendant's) building. The card also contained a letter; at the foot of the letter occurs the following: “ I wonder if the under sheriff, C. E. Fleming, has caused some one to send the above epistle to me?”

The complaint was demurred to, which demurrer was overruled. This ruling was correct because the demurrer was general, addressed to the whole complaint; and as in a portion of the complaint a cause of action was stated, a general demurrer was properly overruled.

Many erroneous rulings in regard to evidence appear in the transcript which cannot be ground for reversal, for the reason that the statement does not comply with the statute as to the specification of errors. We quote one specification as a sample of many others: “The court erred in overruling defendant's objection to question put by plaintiff’s counsel to witness H. W. French, marked in the foregoing statement exception No. 1, and found in lines 10 and 23, page 10.” Three other specifications in similar language, the exceptions numbered 2, 3, and 4, respectively, refer to the same witness, and a page and line are stated as to each. On looking through the transcript we find no exception numbered or marked, and at the pages indicated we find nothing relating to the points endeavored to be presented. In only one instance out of ten does the specification tend to point out the error, and that is in reference to the witness Howell, and because but one exception appears in connection with his examination. For that reason wre can notice that exception, although the place where found is not correctly given, and it is not numbered. The witness was asked what in his opinion would be the fair amount of money in compensation for plaintiff's damages? This was error. No special damage was averred in the complaint, nor cause for special damage stated; therefore the jury and not the witness was to say what damage had been sustained.

As the case goes back for a new trial we will say that the letter contained in the card as published is not libelous without an innuendo, and should have been distinguished from that part of the card which was libelous.

[228]Judgment and order reversed and cause remanded for a new trial.

Thornton, J., and Sharpstein, J., concurred.