THRALL v. SMILEY et al., 9 Cal. 529

Field, J., delivered the opinion of the Court—Burnett, J., concurring. This is an action for an alleged libel upon the plaintiff in- his profession as a dentist. The variance between the date of the libel as set forth in the second count of the complaint—the 23d of June—and the date as shown in the evidence—the 24th of June—was immaterial. The defendants were not misled by it; at least they do not pretend they were misled. If they were prejudiced by it they should have shown to the Court in what respect, to entitle the objection to consideration.

The answer of the defendant, George Smiley, does not contain a justification of the publication. To constitute a justification, the answer should have averred the truth of the defamatory matter charged. It was not sufficient to set up facts which only tended to establish the truth of such matter.

The averment of its truth was essential, without which, the facts detailed could only avail in mitigation of damages. (Practice Act, § 63.) The injury received in the operation described by the defendant, may have been occasioned by the unskillfulness of the plaintiff; still, under the answer, it could not justify the sweeping denunciation that he was “a miserable bungler, and a disgrace” to his profession.

There was no error in excluding from the jury the diagram exhibiting the condition of the teeth of the defendant, George Smiley, both before and after they were injured. ■ This is not a case in which a drawing was necessary to illustrate the fact asserted. The extent of the injury to the two front teeth could be as well understood from the statement of the dentist who repaired them. The instructions requested by the defendants were properly refused. The first three are based upon the idea that the answer amounted to a plea of justification.

The motives with which the publication was made, and the unskillfulness of the plaintiff exhibited in his operation, could not defeat a recovery under the answer; they were facts to he proved in mitigation of damages. The fourth instruction requested is covered by the charge of the Court, which states with accuracy the rule as to the declarations of the defendants. The whole conversation was to be taken together, but the jury were not bound to give the same weight to all parts of it; they were at liberty to consider how much, under the circumstances, was entitled to credit.

The motion for a new trial was urged on the ground of misconduct of the jury in the progress of the trial, and the disqualification of one of the jurors. The alleged misconduct consisted in the perusal of a slip from a newspaper containing the libel upon which the action is brought, a card signed by several dentists of San Francisco, recommending the plaintiff as a careful and competent operator, and a second card by the defendant, George Smiley, exhibiting a drawing of his teeth before and after they were injured.

The slip was taken from the table of the defendants’ counsel, and handed to the jury by the deputy-sheriff. Immediately upon its discovery, the plaintiff’s counsel called the attention of the Court to the fact, and by its order the slip was returned to the defendants, and the j ary were instructed that it was not in evidence, and should be wholly disregarded. The perusal of the slip was highly improper, hut it could not have prejudiced the defendants.

The libel was already in evidence ; the dentists’ card had been mentioned by several of the witnesses without objection, and the jury were informed of its character and contents; and the second card of the defendant, George Smiley, contained a drawing similar to the one offered by his counsel, and excluded by the Court. The plaintiff was the only party who had a right to complain of the conduct of the jury. The alleged disqualification of one of the jurors consists in the fact that his name was not on the venire returned by the sheriff.

It appears, however, that he had been summoned at the commencement of the term, and that his name was entered on the minutes, and placed in the box, and drawn for the trial in the same manner as the other jurors were drawn. The objection, if it had any validity, should have been urged at the trial; it comes too late after verdict. The object of the law is to secure honest and intelligent men for the trial, and it is of no practical consequence in what order, or at what time during the term, they are summoned.

It would be productive of great hardship to permit a second trial upon a ground so technical and unsubstantial. Unless the irregularity complained of in the formation of the jury goes to the merits of the trial, or leads to the inference of improper influence upon their conduct, their verdict should not be disturbed. (King v. Hart, 4 Barn. & Ald., 430 ; United States v. Gilbert, 2 Sum., 19; People v. Ransom, 7 Wend., 417; Ambush v. Hadley, 4 Pick., 38; Commonwealth v. Norfolk, 5 Mass., 435.) In Page v.

Inhabitants of Danvers, (7 Metcalf, 327,) it was objected that certain of the jurors who sat in the case were not selected in conformity with law, and were not qualified to act, and that this fact the parties had for the first time learned since the trial and decision; but the Court, per Shaw, C. J., said, “ If there was any irregularity in the manner of selecting the jury, and if this would have been good ground of exception, if seasonably taken, still it came too late, after proceeding to trial.

The ground is, not that the jurors were interested or prejudiced, or otherwise personally improper, but that there was a mere irregularity, not apparently affecting the merits. Such an objection, if available at all, must be seasonably taken. This results from strong considerations of policy and expediency, rendering it an imperative rule of practice.” Judgment affirmed.