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Moore v. Waring.

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.


decided.: December 4, 1952.

MOORE
v.
WARING.

Author: Frank

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

FRANK, Circuit Judge.

In this suit for slander, the complaint alleged that, in the presence of the members of defendant's musical band, defendant had called plaintiff a "slimy reptile," a "scurvy rat," a "son-of-a-bitch," and a "traitor," and had charged defendant with perjury. Defendant admitted all the nonperjury statements. As to the perjury statement, he denied and, in the alternative, pleaded truth as a defense. The evidence showed that the "traitor" charge meant that plaintiff was a "traitor" to defendant and his band.

There was conflicting testimony as to the charge of perjury. The trial judge told the jury that the "defendant in pleading truth in a slander action is not repeating the slander." The judge left to the jury the questions whether defendant had accused plaintiff of perjury and whether defendant had established the defense of truth. At the close of the judge's instructions to the jury, he asked whether there were objections. Plaintiff's counsel replied: "No, your Honor has covered everything." Plaintiff now contends the judge erred, especially in leaving to the jury the truth-defense, as there was no evidence to support it. But, under Fed.Rules Civ.Proc. rule 51, 28 U.S.C.A., plaintiff was barred from assigning such an error.*fn1 It was not so egregious that we may consider it, Rule 51 notwithstanding.

Plaintiff, in order to recover because of the alleged defamatory remarks other than that as to perjury, was obliged to prove special damages. The judge excluded testimony, which plaintiff offered in an effort to do so. We think the judge did not err, since the proposed testimony was too vague, and accordingly might have misled the jury.*fn2 We have considered the several other contentions of plaintiff and find them without merit.

Affirmed.


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