Opinion
Department Two
Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.
COUNSEL:
R. H. Ward, Meux & Edwards, and P. D. Wigginton, for Appellant.
Church & Cory, and Grady & Welsh, for Respondent.
JUDGES: McFarland, J. Thornton, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
[23 P. 49] Action for slander. Judgment for plaintiff, from which, and from an order denying a new trial, defendant appeals.
1. Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. Respondent contends that this point cannot be heard here, because after appellant had demurred to the complaint on that ground in the court below he stipulated that the demurrer might be overruled, and defendant allowed to answer within a certain time. It is not necessary to determine what consequence would have followed if appellant had expressly stipulated that the complaint did state a cause of action; for it is evident that the stipulation in this case did not go to that extent, and, under any view of the law, did not estop appellant from relying, at any future stage of the case, under section 434 of the Code of Civil Procedure, on the alleged failure of the complaint to state sufficient facts.
But we think that the complaint does state facts sufficient to constitute a cause of action. The main objections made by the appellant to the sufficiency of the complaint are: 1. That there is no distinct averment that plaintiff was an unmarried woman, and therefore she may have been the wife either of the defendant or of the man with whom defendant charged her with having sexual intercourse; and 2. That the language alleged to have been used by defendant does not impute to plaintiff a want of chastity. The plaintiff named in the complaint is "Ida Hitchcock, an infant, by her guardian ad litem, L. W. Scronce," and she is averred to be of the age of seventeen years. The slanderous language alleged to have been used by defendant about plaintiff refers to her as "the girl." He is alleged to have said, among other things, that a certain man named Scronce "was cohabiting with plaintiff as his mistress"; that "he was keeping the girl for immoral purposes"; and that he "was using Ida as his mistress." This, with other language not repeated here, shows that plaintiff was a young unmarried woman, and shows most clearly at least that she was not the wife of the man whose name was connected with her in the alleged slanders.
That the alleged slanderous language imputes to plaintiff a want of chastity is too plain to warrant discussion. We shall not repeat the language here; it is sufficient to say that it charges a want of chastity, not only in plain, but in most gross and indecent terms. And language imputing a want of chastity is actionable per se. ( Civ. Code, sec. 46.)
We think that the complaint sufficiently shows that the persons to whom the slanderous words are alleged to have been spoken knew that they were spoken of and concerning plaintiff. This is particularly true of the third count.
2. Appellant asks for a new trial, because it appears that the case was tried with only eleven jurors. But we will not presume the extraordinary spectacle of a court compelling a party to go to trial against his consent with less than twelve jurors, upon a record which not only fails to show any objection or exception on the point, but which does state that "a jury of eleven persons was regularly impaneled and sworn to try said action."
3. There is an exception to a ruling of the court about the admissibility of evidence. One Hardwick, called as a witness for defendant, testified that the general reputation of plaintiff for virtue was bad. On cross-examination, he was asked if one Carlisle had not gone to San Benito County, where Hardwick lived, and brought him down to Fresno County as a witness; if he had not told Carlisle that he, Hardwick, had seduced plaintiff; and if he had not told Carlisle that he would swear that he had seduced plaintiff. No objection was made by defendant to either of these questions, and the witness answered them all in the affirmative. On further cross-examination, he stated, without objection from defendant, that he had seduced plaintiff about three years previous to the trial, at which time she must have been not over fourteen years old. The defendant then took the witness again, and, upon redirect examination, led him to give a detailed account of the circumstances under which he claimed to have had illicit intercourse with plaintiff, and to swear that he had not "seduced" her in the ordinary sense of the word, because, as he testified, she had been unchaste with others before her alleged relation with him. Plaintiff was afterward recalled on her own behalf, and after having testified that she had never had any acquaintance with the witness Hardwick, was asked by her attorney this question: "Did he at any time offer or suggest any improper liberties with you?" To this question the defendant objected as "irrelevant, immaterial, and incompetent, and not in rebuttal of anything in the case that was brought out by the defense." The objection was overruled, and defendant objected. The witness answered the question, and one or two other questions of similar import, in the negative,
The testimony was not "incompetent"; that is, if the fact sought to be proved was a proper fact to be proved, the testimony offered to prove it was not secondary, or hearsay, or not the best evidence, o r not the evidence prescribed by the statute [23 P. 50] in a particular case, or within any of the categories of incompetent evidence. And a denial of the grave charges made by Hardwick was certainly neither "irrelevant" nor "immaterial." Neither was it "not in rebuttal of anything in the case that was brought out by the defense." If the defendant had let the witness Hardwick alone when plaintiff had concluded the cross-examination, this particular phase of the objection would have presented a somewhat different aspect; but he took the witness again, and drew out new matters on redirect examination, of which the testimony of plaintiff was clearly in rebuttal. Moreover, considering the things which usually and properly influence human belief, we think that plaintiff had a right to show that the witness came from a place beyond the reach of a subpoena to voluntarily testify to his own undue intimacy with a young girl; and that, in addition to the extent to which that fact alone might weaken his testimony before the jury, the plaintiff had a right to show by express testimony, if she could, that his statement was absolutely false. We think, therefore, that there was no error in admitting the evidence.
(Respondent contends that no alleged errors in ruling on the admission of evidence on the subject of plaintiff's character for chastity can be considered, because her character is not assailed by any averment in the answer; that the common-law rule which allowed the character of a plaintiff in a slander suit to be attacked under the general issue has been abrogated by section 461 of the Code of Civil Procedure; and that, under said section, there can be no proof of mitigating circumstances which are not alleged in the answer. This might be an interesting question if properly presented; but as evidence to character went before the jury without objection, respondent cannot be heard to make the objection here for the first time.)
We see no error in the rulings of the court on the subject of instructions which were excepted to by appellant, and the case seems to have been correctly presented to the jury.
Judgment and order affirmed.