Estham v. Curd , 54 Ky. 102 ( 1854 )

Judge Stites

delivered the opinion of the Court.

This is azz appeal from a judgment of the Whitley Circuit Court, in azi action for slander, brought by Curd against Estham.

It is assigned for error — 1. That the court erred in refusing to permit exceptions to be filed to the deposition of Creekmore, and to exclude said deposition from the juz-y. 2. That the evidence was insufficient to authorize the finding of the juz-y. 3. That the court erred in its instructions to the jury.

It appears from the record, that after the jzn-y was sworn, the plaintiff offered to read the deposition of Creekmore which had been filed with the papers of the case before the comznezzcement of the trial. The defendant objected, and offered then to file exceptions in writing. The court overruled his objection, refused to allow him to file exceptions, and permitted the deposition to bo read. After this, the defendant moved to exclude the deposition from the jury on the ground that the certificate of the examiner showed that the deposition had been taken in Whitley county, and that no proof had been introduce d to show either that the witness was a non-resident, absent from the state, resided in another county, or more than thirty miles from the court-house, or labored under any disability to prevent his personal attendance. This motion was also overruled by the court, and excepted to by defendant.

X. Exception8 to depositions in suits at law for any other cause than the incompetency of the testimony, must be filed and noted of record before the commencement of the trial. (Code of Practice, 650, 65X, 654.) 2. In an action of slander the declaration containe d charges of speaking various words and expressions prejudicial to the character of plaintiff. The court instructed the jury “that if the plaintiff had proved the speaking of any of the slanderous words charged in the petition, they should find for him.” Held by the court — that this was ei-ror. The jury should-have been informed what words were slanderous and actionable.

The exceptions tendered, nor the objection taken by motion, went to the competency of the' witness nor to the relevancy or competency of the testimony; and inasmuch as the former were not filed and noted of record before the commencement of the trial, and the latter should have been taken by exception and filed as such, in the manner and at the time prescribed by the Code, (sections 650, 651, 654,) the court properly refused to permit the filing of the exception to exclude the deposition.

Without determining the sufficiency of the evidence to uphold the verdict, which is by no means clear, we are of opinion that the third and last error assigned is fatal to the judgment.

It seems that the plaintiff in his petition had charged the defendant with uttering many and various expressions prejudicial to his character, and on his motion the court, without informing the jury what words set out-in the petition were slanderous and actionable, instructed them, “that if the plaintiff had proved the speaking of any of the slanderous words charged in the petition, they should find for him.”

This was erroneous. It was the province of the court and not the jury to determine what expressions were slanderous. The jury should have been informed what words were slanderous and actionable, and the instruction predicated upon their belief of the speaking of such words by the defendant.

Wherefore, the judgment is reversed, and cause remanded with directions to set aside the judgment and verdict, grant the defendant a new trial, and for other proceedings consistent with this opinion.