Phillips v. Haugaard

Boyd, C. J., delivered the opinion of the Court. The appellee recovered a judgment against the appellant in an action of slander, from which this appeal was taken. As amended there are two counts in the declaration — the words alleged in the one to have been spoken being, “he (thereby meaning the plaintiff) is a German spy using his position with ihe Washington Post * * * to obtain secret information which he furnishes the German Government,” and in the additional count the words are: “I believe this man (meaning the plaintiff) is an alien enemy and a German spy, and he is connected with a Washington newspaper and can send information abroad seriously damaging and affecting this country.” A bill of particulars was filed as follows: “That the alleged slander occurred on a car of the Kensington Kailway, leaving Chevy Chase Lake at 9.30' A. M. on its return from Harris Station, at or near the overhead bridge, on the day mentioned in the declaration.” During the trial there were five exceptions taken to rulings on the admissibility of evidence, one to the. riflings on the prayers and the seventh was taken to striking out the granting of his sixth prayer and the refusal to grant it after the plaintiff had, with leave of the Court, amended the declaration, by ⁴³⁰ adding the additional count, over the objection of the defendant. The defendant also demurred to both counts and the demurrer was overruled.

The plaintiff testified that he had lived in Kensington, Md., since the first of December, 1911; that he was bom in Copenhagen, Denmark, came to this country in 1892 and .was naturalized on the Ith of April, 1898; that he had been employed by the Washington Post for twenty years and was in entire charge of the office from 12 o’clock at night until 8 o’clock in the morning. He further testified that he had known the defendant since shortly after he came to Kensington and that he and the defendant had conversed a good deal and had discussed many questions in a friendly way, including the Mexican policy of the Government, on which they had. taken opposite sides. The plaintiff spoke of the defendant as having taken over the operation of the Kensington Kailway and trouble occurred between them because the defendant did not maintain the schedule, changed the fare and was generally unsatisfactory in his service to the public. The incident complained of occurred on the 10th of April, 1918.

He gave the defendant his fare and told him he wanted to get off at Hopkins’ store and defendant said he did not stop there. The plaintiff replied that he wanted to get off there and he was going to remain on the car until he did so. When they came to Harris Station the defendant demanded the fare from there, and the plaintiff told him he had all of the fare that he was entitled to, or that he was going to pay on that trip. They had considerable altercation about it.

The defendant testified that the road ran from Chevy Chase Lake past the point known as Hopkins’ store to Horris Station and that he 'was the manager of the railroad, composed of two different corporations. He and a man named Pox were acting as conductor and motorman on that car. It seems that they had at one time stopped at Hopkins’ store but, according to the defendant, they had given up that stop- on account of the grade and the condition- of the road. , The plaintiff and ⁴³¹ defendant bad had a number of discussions and altercations about it, and at times both used language that ought not to have been used by either. They had reached Horth Kensington when a Mr. Truitt and a Mr. Bissett got- on the car.

The plaintiff said that the defendant had not gotten over his excitement and remarked to Truitt: “See that man there, he -refused to pay his fare,” and Mr. Truitt addressed him in rough language. The defendant said: “That man, he is nothing hut a German spy; he is engaged in a newspaper in a Washington paper, the Washington Post, and he is using his position to obtain secret information which he furnished the German Government.” He and Truitt quarreled some, and the defendant left the car, saying that he was going to- the telephone and have him arrested. The plaintiff told Truitt that if there was a suspicion of his being a spy, it was his duty to inform the Department of Justice. He offered his card to Truitt, who: declined it, as he said, “To facilitate matters, to bring his charges wherever he wanted them to.” Counsel for defendant objected to his testifying to wbat occurred between him and Truitt, but the Court said it was all part of the same occurrence and that the plaintiff said the defendant was present.

The defendant noted an exception, and the: plaintiff was asked: “In view of your statement that Mr. Phillips was still present at the time this conversation took, place between you and Mr. Truitt, I will ask you to state just what Mr. Truitt said?” An objection was made and overruled, the question was repeated and the witness answered: “He said I am not going to the Department of Justice, but I am going to the Washington Post, whom I know very well, or whose people I know very well, and tell them what they are harboring under their roof, and with that I handed him my card to facilitate matters. Then Mr. Phillips left, and I handed the card — he left with the assertion that he was going over to his house to telephone for the Sheriff to' have me arrested.” To the question and answer the defendant objected, and tbe ⁴³² objection was overruled and tbe defendant excepted — tbe ruling constituting the first bill of exceptions. That was clearly admissible as a part of the occurrence between plaintiff and defendant, and it showed that what defendant had just told him (Truitt) about the plaintiff induced him to at least threaten to go to plaintiff’s employers to¡ let them know ^what they were harboring under their roof.” There could not well be evidence which more directly and positively showed the effect of the language used by defendant on a bystander, and, according to plaintiff the defendant was there and could see the effect of his statement. There was no error in the ruling in that exception. ;The second and third exceptions can be considered tou gpjher., Miss Chapman testified that she knew the plaintiff and. defendant.

She was then asked: “Did you or not at any time last spring on a railway operated by the Kensington Railway Company hear Mr. Phillips say anything of and concerning Mr. Haugaard, and if so what was it?” She replied: “I did, I did not hear him- mention Mr. Haugaard’s name.” She was then asked,: “What, if anything, did you hear Mr. Phillips say,” and replied, “I heard him say that there was. a man in Kensington-.” She was interrupted by counsel for the defendant who contended that her testimony was not admissible unles it was shown that the plaintiff . was the man referred to, and finally after the witness and the-■counsel had conferred with the Court the trial proceeded before the jury. Mr. Dawson for plaintiff"then said: “Mow, we renew the question.” An objection was made which was overruled and the question was repeated, the witness answering: “I heard him say that there was a man in Washington hetre who was in the employ in the force of a Washington newspaper who was' a German spy.” To the question and answer an exception was taken and that is presented by the second bill of exceptions; After that the witness testified: “Hfe said that he was disloyal to the Country,” and “He- gave his reasons for’ thinking that.” On- cross-examination the ⁴³³ witness was told: “Give ns all the conversation,” and she replied: “He said he criticised the public utilities, namely, the oar companies, and was therefore disloyal.” Counsel for plaintiff addressed the Court and said he would ask leave to direct the witness’ mind to the statement she made to Mm in reference to the conversation, and this question was asked: “The gentleman to whom he was referring, what, if anything, did he say about the man being allowed to run at large?” Counsel for defendant objected but the Court overruled the objection, stating that it was evidently intended to direct the mind of the witness to some specific feature of the conversation. The witness answered: “He said he should not be allowed to run at large.” She was asked: “What, if anything, did he say about his being, a dangerous man,” and replied: “That was right in the conversation. He said he was a dangerous man and should not be allowed at large.” On re-crossr-examination she said no name was mentioned in the conversation.

The defendant then moved that the testimony of the witness be stricken out, unless counsel for plaintiff assured the Court that the conversation testified to between the defendant and the unnamed man would be connected with the plaintiff. That was overruled and the third exception taken. While the identification might have been more specific, there was sufficient to go to the jury for it to determine whether the language was spoken of and concerning the plaintiff. It would be difficult for any one who read the testimony as reported in this record to reach any conclusion other than that the language was used in reference to the plaintiff.

Indeed the witness, at- least inferentially, if not expressly, said it was the plaintiff. She testified in the beginning of her evidence that she heard Mr. Phillips say something of and con coming the plaintiff, but she did not hear Mm mention his name. It was not necessary to do that, and no one who was on the car when the words complained of were uttered could have failed to know to whom- they referred. Then when ⁴³⁴ asked how she knew, he was referring to plaintiff, she said: “Because he said that this man — ” and was then interrupted.

A party to a suit cannot offer all of his evidence at once, and it frequently