
    JOSEPH B. CRAMER vs. PATRICK CULLINANE.
    Law. —
    No. 10968.
    I. A declaration in an action of slander, in which there is a claim for special damage, on account of the plaintiff having been prevented from obtaining employment by reason of the slander, ought to name the parties by whom such employment was refused. If not’ so stated, no evidence of particular persons having refused to employ the plaintiff will be received.
    II. In such action the pecuniary condition of the defendant may be taken into consideration by the jury in assessing damages.
    III. A witness can only be cross-examined in regard to matters connected with the direct examination; but where the witness is a party to the suit, and is questioned on cross-examination in regard to a fact not touched upon in his examination-in-chief, and his answer thereto is in his own favor, the court will not disturb the verdict on account of the admission of such question.
    STATEMENT OE THE CASE.
    This was an action of slander. The declaration consisted of two counts. The first was abandoned, and the cause was tried below on the second alone. It stated that in the months of May and June, A. D. 1873, in the city of Washington, and District of Columbia, the defendant spoke and published of and concerning the plaintiff, in the presence and hearing of others, the words following: u He [meaning the plaintiff] is a damned thief.” “I [meaning the defendant] “paid him [meaning the plaintiff] three dollars a day for every day while he [meaning the plaintiff] was superintendent on Four-and-a-half street;” that “he [meaning the plaintiff] had robbed him [meaning the defendant] while he [meaning the plaintiff] was superintendent on Four-and-a half street, of a large amount of money, to wit, three dollars a day for every day that the plaintiff was superintendent on said street.” The plaintiff also alleges that by means of the speaking and publishing of said false, scandalous, and opprobrious, and malicious words the plaintiff has been, and now is, greatly injured and prejudiced in his good name, fame, and credit, insomuch, that many of the neighbors of the plaintiff, and other good citizens of the District, not knowing the innocence of the plaintiff in the premises, have believed the plaintiff to be guilty of said charged, and also has been thereby hindered and prevented from obtaining profitable employment, and that he has suffered great pecuniary loss thereby, to wit, the sum of $5,000. Plaintiff claims $20,000 damages, and costs of this suit.
    The plea is, “Not guilty.”
    Upon the trial of the cause, the plaintiff, after calling witnesses to prove the words uttered by the defendant, was examined as a witness on his own behalf, and, among other things, was asked by his counsel whether, after the utterance of the alleged slanderous words, he had applied and failed to get employment from any one. The question was objected to by defendant’s counsel, and the objection was overruled by the court; the plaintiff then answered that he had applied to the board of public works, the board of health, and the present commissioners of the District of Columbia, and failed to obtain employment. The defendant’s counsel objected to the answer as not being justified by the pleading, and as not showing that the failure to obtain employment was in consequence of the alleged slander. The objection was also overruled by the court, and this constitutes the first exception in the case.
    After the plaintiff’s case was closed, the defendant became a witness in his own behalf, and testified as follows, viz-: That the plaintiff had been employed by the defendant on a job of work, for which he had paid him, and that he never was employed by him on Four-and-a-half street; that the plaintiff was superintendent during part of the time, and during that time required defendant to pay him different sums of money, which he did.
    The plaintiff inquired of him, upon cross-examination, whether he had spoken the words as testified to by Whitaker, Oarahan, and Morsell, in reference to his being a thief; to which the defendant, by his counsel, objected, on the ground that the matter inquired about was in no way brought out in the examination-in-chief, and related entirely to new matter; but the justice trying the case overruled the objection, and the defendant testified, in answer to the question, that he had spoken about the plaintiff, but did not recollect of calling him a thief, as charged against him, and did not pay the money as a bribe.
    The testimony being all' in, the plaintiff requested the court to instruct the jury as follows :
    1st. If the jury find from the evidence the fact alleged in the declaration, and further find that by the words and conduct of the defendant the plaintiff was prevented from obtaining employment that he otherwise might have obtained, then the plaintiff is entitled to special damages.
    2d. If the jury find from all the evidence in the case the fact alleged in the declaration, and that the plaintiff is entitled thereby to recover a verdict, then, in fixing the measure of damage, they have a right to take into consideration the nature of the accusation, to what extent it was calculated to affect the reputation and standing of the plaintiff, and the pecuniary condition of the defendant.
    The defendant’s counsel objected, but the objection was overruled by the judge, and the instructions given, which constitute the second exception.
    The jury returned a verdict in favor of the plaintiff for the sum of-dollars.
    A motion was made to set aside the verdict and for a new trial, which was denied, and the casé is now here upon the foregoing exceptions.
    
      John E. Norris and J. R. McConnell for plaintiff:
    The doctrine of the latitude of cross-examination is very fully discussed, and a number of references given in 1 Green-leaf on Evidence, sec. 415. The current of authorities in England and America differ materially in relation to the extent to which it can be carried; but, as a general rule, it lies withiu the discretion of the court in cases at nisi prius. In the case at bar, the witness was also the defendant to the action; and it is humbly submitted that, as the decision ■of the Supreme Court of the United States, 14 Peters, 448, and the decisions in other casps cited in the above section, were rendered before parties were made witnesses in their own cases, they do not apply in this case in their full force.
    
      Of the pecuniary condition of the defendant, and the exception taken to the ruling of the justice presiding, the evidence on this point was properly admitted. The jury, in estimating-the damages, may consider the defendant’s pecuniary circumstances and position and his influence in society. His wealth is an element in his social rank and influence, and therefore tends to show the extent of the injury from the-slanderous words. Lewis vs. Chapman, 19 Barb., 252; Humphreys vs. Parker, 52 Maine; Kunkel vs. Markel, 26 Md., 391; Day vs. Woodworth, 13 How., 363; Sedgwick on Damages, 4th ed., 636.
    
      Hine and Cook for defendant:
    The declaration alleged that, in consequence of the words-set out in it having been uttered by the defendant, the plaintiff had been (< hindered and prevented from obtaining profitable employment,” and that he had thus sustained a loss of $5,000. This was the only part of the declaration in relation to special damages, and on which the question and testimony admitted by the court, and objected to, and set out in the first exception, could possibly be supported. It was clearly insufficient for that purpose. The testimony was that of the plaintiff himself, and related to particulars in no manner indicated in the declaration. 1 Cbitty’s PL, 339.
    The defendant was called as a witness, and, by his counsel, interrogated in relation to the employment of the plaintiff, and to being required to pay him money while a superintendent of the District. The plaintiff, by his counsel, then asked him on cross-examination whether he had spoken the words set out in the declaration. This was objected to, but the objection was overruled. Such a cross-examination was clearly irregular and improper. Hington vs. Jones, 1 Wall., 702; Philadelphia and Trenton Railroad Company vs. Stempson, 14,. Pet., 448.
    The exception permitted the jury, in finding damages, to-consider not only the nature of the accusation and its effect on the plaintiff’s reputation, but also the pecuniary condition of the defendant; this was clearly erroneous. Sherman & Bedfield on Negligence, 2d ed., 606.
   By the COURT:

The verdict in this case ought to be set aside, for the reason that the justice presiding at the trial permitted the plaintiff to testify that he had applied to the board of public works, the board of health, and the Commissioners of the District of Columbia, and failed to obtain employment. There were no allegations in the declaration of special damage which would justify such evidence. To state the plaintiff had been prevented from obtaining profitable employment and had suffered loss thereby, without naming in particular by whom such employment was refused, is too general, and the evidence of particular cases is inadmissible under such a general form of pleading. Moreover, the testimony of the plaintiff does not show that the failure to obtain employment was in consequence of the alleged. slanderous words of the defendant. We think, therefore, the first instruction asked for by the plaintiff ought to have been refused. The second instruction was properly given.

The defendant was examined as to the business of the plaintiff, and as to having been obliged to pay him money, and he was asked on cross-examination if he had spoken the words imputed to him in the pleadings. It is clear that this question was not connected with what the witness had stated in his examination-in-chief, and was therefore objectionable. The answer of the witness, however, was in his own favor, for he testified that he had not spoken the alleged slanderous words. The court can therefore see that the defendant has sustained no injury, and would sustain no injury by the ruling of the court, and would not therefore disturb the verdict on that ground. But for the reason already stated, we are of opinion the verdict ought to be set aside and a new trial granted.  