{
  "id": 3103435,
  "name": "Mabel Delatine, Appellee, v. Harry Kramer, Appellant",
  "name_abbreviation": "Delatine v. Kramer",
  "decision_date": "1925-02-09",
  "docket_number": "",
  "first_page": "359",
  "last_page": "362",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T17:28:11.862508+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Mabel Delatine, Appellee, v. Harry Kramer, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Boggs\ndelivered the opinion of the court.\nAn action in case was instituted by appellee in the city court of East St. Louis against appellant for slander. A trial was had, resulting in a verdict and judgment in favor of appellee for the sum of $500. To reverse said judgment, this appeal is prosecuted.\nAppellant conducted a grocery store and meat market, while the husband of appellee ran a lunch counter and confectionery store. On the day in question, appellant and appellee\u2019s husband got into an altercation over a grocery bill which appellant claimed was owing to bim from appellee\u2019s husband. Appellee testified that she took hold of appellant\u2019s coat collar and tried to separate the two men; that while so engaged appellant, among other names, called her a thief, his words being: \u201cYou are a thief; you robbed me of my blood.\u201d The evidence discloses that at said time appellant had received a cut or injury on the head, and there was considerable blood on his face.\nIt is contended by counsel for appellant for a reversal of said judgment that there is a variance between the allegation and the proof. The declaration, which consists of one count, charges that the alleged slanderous words were spoken of appellee, while the proof shows that the words were spoken to her. It is further contended by counsel that the word \u201cthief\u201d as used by appellant, is modified by the words \u201cyou robbed me of my blood,\u201d so that the word \u201cthief\u201d in the connection used did not impute larceny or any other crime.\nWe are of the opinion and hold that counsel for appellant is correct as to both of the propositions urged provided appellant is in a position to raise question of variance. The declaration charges the alleged slanderous words to have been spoken of appellee in the third person, whereas the uncontradicted evidence is to the effect that they were addressed directly to her, that is, in the second person. A variance of this character is fatal to a right of recovery. Sanford v. Gaddis, 15 Ill. 229; Wilborn v. Odell, 29 Ill. 456; Wallace v. Dixon, 82 Ill. 202; Becker v. Schiller, 49 Ill. App. 606; 25 Cyc. 486.\nIt is contended by counsel for appellee that the question of variance was not raised in the lower court, and for that reason it cannot be urged here. The record discloses that appellant moved for a directed verdict at the close of appellee\u2019s evidence, and again at the close of all the evidence, and it is contended by counsel for appellant he is therefore in a position to raise the question of variance in this court. We are of the opinion and hold that to raise the question of variance in this court it must have been specifically raised in the court below.\nThe law is that words actionable per se may be so changed in their meaning by other words used in connection therewith as to render the same not actionable without proof of special damages. Sanford v. Gaddis, supra; Baker v. Young, 44 Ill. 42. The record clearly discloses that the word \u201cthief,\u201d when addressed to appellee, was followed by the words, 1 \u2018 you robbed me of my blood. \u2019 \u2019 Regardless of whether appellant referred to the fact that he was bleeding, and that appellee was in some way responsible therefor, we are of the opinion and hold that the use of the word \u201cthief,\u201d in connection with the words \u201cyou robbed me of my blood,\u201d do not indicate that appellant was charging appellee with being a thief. It might be further observed that the evidence wholly fails to prove the allegation of the declaration to the effect that the words as used were intended to charge appellee with having \u201cfeloniously stolen, taken and carried away the goods and chattels of the defendant.\u201d\nIt is next contended by appellant that the court erred in its rulings on the instructions. In view of our holding on the merits of the case, as above set forth, it is not necessary for us to discuss the same. No right of recovery is disclosed by the record, and inasmuch as it is apparent there can be no recovery in this case, the judgment of the trial court will be reversed without remanding.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Boggs"
      }
    ],
    "attorneys": [
      "Barthel, Farmer & Klqtgel, for appellant.",
      "Gr. C. Borders, for appellee."
    ],
    "corrections": "",
    "head_matter": "Mabel Delatine, Appellee, v. Harry Kramer, Appellant.\n1. Libel and slandeb \u2014 variance in slander action. The fact that the declaration in an action for slander alleges the slanderous words to have heen spoken of plaintiff in the third person, whereas the uncontradicted evidence is that they were directed directly to her, constitutes a fatal variance.\n2. Appeal and ebbob \u2014 waiver of variance by failure to specifically object below. Before the question of variance may be raised on appeal it must have been raised specifically in the trial court.\n3. Saving questions fob beview \u2014 motion for directed verdict as saving question of variance. Motions for directed verdict at the close of plaintiff\u2019s case and at the close of all evidence were not sufficient to save for review the question of variance between a declaration for damages for slander and the proof of the alleged slander, since the question of variance must be specifically raised.\n4. Libel and slandeb \u2014 sufficiency of evidence of slander. In an action of slander where the alleged slanderous words \u201cyou are a thief,\u201d addressed to plaintiff, were immediately followed by the statement, \u201cyou robbed me of my blood,\u201d they do not indicate that defendant was charging plaintiff with being a thief, regardless of whether defendant referred to the fact that he was bleeding and that plaintiff was in some way responsible therefor, and wholly fail to prove the allegation of the declaration that the words as used were intended to charge appellee with having \u201cfeloniously stolen, taken and carried away the goods and chattels of the defendant.\u201d\n5. Appeal and ebbob \u2014 refusal to discuss unnecessary questions. When no right of recovery is disclosed by the record it is not necessary to discuss alleged errors of the trial court in its rulings on instructions.\nAppeal by defendant from the City Court of Bast St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1924.\nReversed.\nOpinion filed February 9, 1925.\nBarthel, Farmer & Klqtgel, for appellant.\nGr. C. Borders, for appellee."
  },
  "file_name": "0359-01",
  "first_page_order": 403,
  "last_page_order": 406
}