In view of the fact, however, that the jury sustained the defense of truth, the issue of privilege vanished and became immaterial. Consequently, any question of admissibility of testimony in rebuttal of any part of the evidence given by the defendant on the witness stand is academic. While these comments would suffice as a ground for a disposition of the question now raised, nevertheless, it seems appropriate to discuss it on the merits, because on further consideration of the matter, the court adheres to its original ruling.
During his cross-examination the defendant was asked by counsel for the plaintiff whether he had attempted to secure the good offices of Mr. Smith of Los Angeles to intercede with the plaintiff to drop this suit. This line of cross-examination was permissible solely on the theory that an affirmative answer might have been construed as a lack of confidence on the part of the defendant in his own good faith, and would have been some evidence of a consciousness of a weakness in his contention that he had made an adequate investigation and uttered the statement without malice. The defendant replied, however, that it was Mr. Smith who had approached him and offered to act as an intermediary; that later Mr. Smith communicated with him again and stated that although the plaintiff wanted to drop the case, his attorneys had interposed an objection owing to the fact that they had been retained on a contingent fee basis. The answers apparently were not those that counsel had expected. Nevertheless, since the questions related to a collateral matter, the plaintiff was bound by the witness' responses. This is a peril encountered by one who embarks upon an unknown and uncharted sea of cross-examination. In rebuttal plaintiff's counsel called his client to the stand and asked him whether it was true that he wanted to drop the case. The court sustained an objection to the question on the ground that it related to a collateral matter and that consequently the plaintiff was bound by the witness's answer on cross-examination and was not at liberty to offer testimony to contradict it. This ruling is manifestly in accord with the principles governing cross-examination. The previous discussion dealing with the admissibility of the deposition of Sten is equally applicable to the present question.
The remaining point raised by the motion relates to the selection of the jury. It is claimed by the plaintiff that one of the jurors gave a false answer on the examination on voir dire and that on this ground a new trial should be granted. Each of the prospective jurors was requested to state his occupation. The juror in question answered that he was 'a sheet metal worker, self employed'. In support of the motion for a new trial, an affidavit made by a lawyer associated with counsel for the plaintiff is adduced to the effect that the juror is listed in the District of Columbia Directory as a news dealer at the Longfellow Building, and that on a specified Sunday the affiant observed the juror operating a news stand near the Longfellow Building. Assuming that there was no error in identification, the only inference of which this information is susceptible is that the juror in question in addition to being a sheet metal worker had a secondary occupation or employment on the side in which he was engaged on Sundays and possibly other off-days, namely, the operation of a news stand. It cannot be said, therefore, that the juror's answer was false. When a prospective juror is asked concerning his occupation, it is natural for him to name his principal activity. There are many persons who engage in a secondary occupation in their free time, but a complete answer would not require them to state both their principal and their side occupation.
A question could have been propounded whether any of the jurors have a secondary occupation, or a specific query could have been directed to the jurors, if counsel was particularly interested in ascertaining whether any juror devoted any part of his time to dealing in newspapers and periodicals. This was not done. It should be observed that the Court exercised the utmost liberality in propounding to the jurors questions submitted by counsel, and the queries just suggested would have been asked had counsel so requested. The Court feels that there is no foundation for the contention that the juror gave a false answer or concealed any information which he should have revealed in answer to questions.
The cases on which the plaintiff relies are not in point, since each of them involved a situation in which the juror intentionally and purposely gave a false answer to a question directed to him on a vital matter.
Counsel for the plaintiff now state categorically that they would have exercised one of their peremptory challenges against this juror had they known that he had any connection with the sale of newspapers. At the trial, however, they exhausted all of the challenges that the law allows. They do not indicate which of the challenged jurors they would have permitted to stay on the list in order to strike the juror here under discussion.
The suggestion that the plaintiff may have been prejudiced by reason of the fact that a person who has some connection with the sale of newspapers was a member of the jury seems to border on the fanciful. It is suggested that since every news stand carries a Washington paper that prints the defendant's column, a news dealer would be prejudiced in the defendant's favor. By the same token, however, it might be urged that he would be prejudiced against the defendant because every news stand likewise carries newspapers that print material critical of the defendant. It is a matter of common knowledge, well-known to all readers of newspapers and periodicals, that nowadays it is customary for newspapers to carry contributions of columnists presenting opposing points of view and, therefore, the mere fact that a person reads a particular newspaper cannot give rise to an inference that he is prejudiced in favor of any one of the columnists who contribute to that newspaper. Moreover, there is no presumption and it is probably contrary to the fact that the operator of a news stand reads all of his own wares. The objections belatedly raised to the juror in question are not well founded.
The trial of this case consumed about a week. Assiduity of able counsel in studying the record has unearthed only two rulings on evidence which are now called in question. The court adheres to these rulings. No errors are assigned to the court's instructions to the jury. No errors are assigned in respect to anything else that occurred at the trial except the episode relating to the juror whose qualifications have been attacked. This point the court has also held to be untenable.
In addition, the court desires to call attention to the principle that motions for a new trial are addressed to the discretion of the court. They should be granted only if to do so would promote the ends of justice. The parties to this case have had a fair trial. Each of them was given a full opportunity to present his contentions within the ambit of the rules of evidence. The verdict of the jury is not only sustained by substantial evidence, but is fully supported by the weight of the evidence. The court is of the opinion that substantial justice has been done.
Motion for a new trial is denied.