Stern v. Loewenthal

Sharpstein, J. On the trial of this action (for slander), some of the witnesses for the plaintiff testified to utterances by the defendant, other than those alleged in the complaint. The defendant moved that the evidence as to such utterances be stricken out. The motions were denied, and the defendant excepted. This raises the question of the admissibility of evidence to prove words not set out in the complaint. Upon that question the opinions of courts have been discordant. Against the admissibility of such evidence, the opinion of Bronson, J., in Root v. Lowndes, 6 Hill, 518, 51 Am. Dec. 762, is characteristically clear and vigorous. Townshend, after referring to some conflicting opinions upon this point, says: “But the better opinion appears to be that evidence of a charge of a different nature, and at a different time from that alleged in the declaration, is inadmissible to prove malice, or for any purpose. This is in effect only another form of the rule that actionable words not counted upon cannot be given in evidence unless suit upon them is barred by the statute of limitations, and their admission, where the statute has run, is opposed to principle, as it, in effect, restores a cause of action which has been taken away by the law.” (Townshend on Libel and Slander, sec. 392.)

In that view of the question we concur, and think the court erred in denying the motion of defendant to strike out.

After denying the defendant’s motion to strike out, the court, on motion of plaintiff, struck out the evidence which the defendant had moved to have stricken out, with the exception of that given by the witness Taylor, who testified that defendant told him “that he would break Mr. Stern [plaintiff] up in business.” If the court erred in denying defendant’s motion to strike that out, the error was not cured by any subsequent act of the court. Was the denial of that motion error? The words are not literally, nor substantially, the same as those [343]alleged in the complaint to have been spoken by the defendant. And the witness does not testify that they were spoken in connection with those alleged in the complaint to have been spoken, or that the defendant ever, at any time, spoke in his, witness’s, hearing the words alleged to have been spoken by the defendant. The testimony of this witness was clearly irrelevant, and the motion to strike it out should have been granted. The case of Chamberlin v. Vance, 51 Cal. 75, cited by plaintiff’s counsel, is distinguishable from this case. In that case the court says the words testified to “were substantially the same as those declared on.” The rule against admitting irrelevant testimony applies in this as in other cases.