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200 F.2d 491

Docket No. 16, Doeket 22365.

Moore v. Waring

Second Circuit Court of Appeals

Argued Nov. 3, 1952.

Decided Dec. 4, 1952.

Second Circuit Court of Appeals · decided 1952-12-04

2 counsel of record

Key passage — most relied on by later courts

““No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.””

quoted by 1 later decision, including Creagh v. United Fruit Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1952-12-04

How this case has been cited

Cited by 17 later decisions — most recently April 1974

14 federal appellate · 1 district ·

100195219601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1William J. Rapp, New York City, for plaintiff-appellant (Robert A. Siebert, Pierce V. Brennan and William J. Rapp, New York City, of counsel).

¶2O’Brien, Driscoll & Raftery, New York City (Arthur F. Driscoll, Edward C. Raf-tery and Milton M. Rosenbloom, New York City, of counsel), for defendant-appellee.

¶3*492Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

¶4FRANK, Circuit Judge.

¶5In 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 non-perjury 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.

¶6There 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.1 It was not so egregious that we may consider it, Rule 51 notwithstanding.

¶7Plaintiff, 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. AVe think the judge did not err, since the proposed testimony was too vague, and accordingly might have misled the jury.2 AA/e have considered the several other contentions of plaintiff and find them without merit.

¶8Affirmed.

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