Cavlovic v. Nikolish

Superior Court of Pennsylvania

Cavlovic v. Nikolish

83 Pa. Super. 532, 1924 Pa. Super. LEXIS 187

CourtSuperior Court of Pennsylvania

DecidedApril 30, 1924

DocketAppeal, 125

StatusPublished

This text of 83 Pa. Super. 532 (Cavlovic v. Nikolish) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cavlovic v. Nikolish, 83 Pa. Super. 532, 1924 Pa. Super. LEXIS 187 (Pa. Ct. App. 1924).

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Opinion

Opinion by

Gawthrop, J.,

This was an action of trespass for slanderous words used by a man of a married woman and reflecting upon her chastity. The plaintiff got a verdict. The sole ques *534 tion raised by the assignments of error is whether the charge of the trial judge was unduly prejudicial and intemperate in the circumstances. After referring to the evidence of the plaintiff, the court said: “Well, now, I imagine that a man who would say such a thing might swear to anything. I would not believe him under oath, particularly when it comes to a question of taking money out of his pocket, which in itself is a poor apology, but the only thing given by the law in a case of this kind. That is the case of the plaintiff.” The sole answer to the plaintiff’s case was the testimony of the defendant himself. After stating that fact, the court charged: “In a case of this kind you have got to consider with great discretion. It is something which, to begin with, provokes you. Any man who would say such a thing, even if it is true, isn’t any good; and even if it is true, he is far from being what he ought to be. So you start off with a sort of a bad feeling in your mouth, and the charge itself, made by a man against a woman, gives you that feeling. And it is a natural one and you would not be what you are if you did not have such a feeling.”

The defendant here, as always, was entitled to a calm and dispassionate review of the case. The charge, instead of assisting the jury to arrive at a just verdict, was calculated to inflame them, and arouse resentment against the defendant. There is nothing in the charge, considered as a whole, which relieved it from the manifest effect of the language above quoted. It was not neutralized by the simple warning to be careful not to do the defendant an injustice. (See Monier v. Phila. Rapid Transit Co., 227 Pa. 273, 277; Weiss v. London Guarantee & Accident Co., 280 Pa. 325, 331.)

The judgment is reversed with a venire.

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Opinion by

Gawthrop, J.,

This was an action of trespass for slanderous words used by a man of a married woman and reflecting upon her chastity. The plaintiff got a verdict. The sole ques *534 tion raised by the assignments of error is whether the charge of the trial judge was unduly prejudicial and intemperate in the circumstances. After referring to the evidence of the plaintiff, the court said: “Well, now, I imagine that a man who would say such a thing might swear to anything. I would not believe him under oath, particularly when it comes to a question of taking money out of his pocket, which in itself is a poor apology, but the only thing given by the law in a case of this kind. That is the case of the plaintiff.” The sole answer to the plaintiff’s case was the testimony of the defendant himself. After stating that fact, the court charged: “In a case of this kind you have got to consider with great discretion. It is something which, to begin with, provokes you. Any man who would say such a thing, even if it is true, isn’t any good; and even if it is true, he is far from being what he ought to be. So you start off with a sort of a bad feeling in your mouth, and the charge itself, made by a man against a woman, gives you that feeling. And it is a natural one and you would not be what you are if you did not have such a feeling.”

The defendant here, as always, was entitled to a calm and dispassionate review of the case. The charge, instead of assisting the jury to arrive at a just verdict, was calculated to inflame them, and arouse resentment against the defendant. There is nothing in the charge, considered as a whole, which relieved it from the manifest effect of the language above quoted. It was not neutralized by the simple warning to be careful not to do the defendant an injustice. (See Monier v. Phila. Rapid Transit Co., 227 Pa. 273, 277; Weiss v. London Guarantee & Accident Co., 280 Pa. 325, 331.)

The judgment is reversed with a venire.

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83 Pa. Super. 532, 1924 Pa. Super. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavlovic-v-nikolish-pasuperct-1924.

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