Morris v. Lachman

Foote, C. — Action to recover damages for slander, in the alleged speaking by Lachman, of aiid concerning the plaintiff and one Henry Cavendish, the words: “They are horse.-thieves and scoundrels.”

The defendant filed a second amended answer, in which the main ground of defense was stated to be, that he believed his horse, harness, and wagon had been stolen, and did not know the persons who had taken them, and that in using the language complained of he had no reference to the plaintiff, but spoke it of those [111]unknown persons who he honestly believed had committed a larceny of his property.

By the bill of exceptions as settled, it appears that upon the trial of the cause the evidence showed that one Connolly had sold the property about which the controversy arose (which, it was contended, Lachman had accused plaintiff of stealing) to the plaintiff, and had given her a bill of sale therefor. The plaintiff had allowed Connolly to use the horse and wagon, and that he subsequently sold them to the defendant (then in New York), delivering them to Lachman’s son, who was in charge of his father’s business here while the latter ■was absent. That afterwards, and during the defendant’s absence in New York, plaintiff found the horse and wagon on the street in San Francisco and took them to Oakland, without notifying defendant or his son. Upon his return to San Francisco the defendant went to Oakland in search of the property; at which time and place he was alleged to have used the language set out in the complaint. Judgment was rendered for the defendant, and the plaintiff’s motion for a new trial denied, and she appealed.

At the trial it was claimed, on the part of the plaintiff, that the defendant used the language set out in the complaint, of and concerning the plaintiff and Mr. Cavendish, while said Lachman was standing inside the door of Messrs. Lesher and Saunders’s store in Oakland, and that plaintiff and Mr. Cavendish were passing by on the street in front thereof, and that just as they went by, Mr. Lesher said to the defendant: “There goes the lady and gentleman who left the horse and wagon here, now.” To which defendant replied: “Lady and gentleman be damned! — they are horse-thieves and scoundrels.” And the plaintiff introduced evidence to show the speaking of the words by defendant as laid in the complaint.

It was within the court’s discretion to strike out the leading question put to the plaintiff by her counsel.