S. N. D. SMULLEN, Respondent, v. L. H. PHILLIPS, Appellant, 92 Cal. 408

Fitzgerald, C. This is an appeal from an order granting plaintiff’s motion for a new trial. The action is slander, and the words charged in the original complaint as having been spoken by the defendant of and concerning the plaintiff are: “He is a thief.” These words impute to the plaintiff, a crime punishable by law, and are therefore actionable per se.

At the trial, the witness for plaintiff testified that the words used by the defendant, at the time and place alleged, were as follows: “That thieving son of a -, he stole two thousand five hundred dollars from me, and I can prove it.” This testimony was, on motion, stricken out, on the ground of variance, and the plaintiff, after excepting to the ruling of the court, moved for- and obtained leave to amend his complaint by inserting the words of the witness in lieu of those originally declared on.

The defendant, in his answer, specifically denies the material allegations of the amended complaint, and, among other matters of defense, avers that the alleged cause of action set out therein is barred by the provisions of subdivision 3 of

section 340 of the Code of Civil Procedure. The trial was then proceeded with by the plaintiff recalling his witness, and propounding to him the following question: “State the language used by the defendant Phillips, at his store on November 6, 1888, in the presence of yourself and others, of and concerning the plaintiff, Smullen.” Counsel for the defendant, here objected “to the introduction of any evidence in support of the cause of action set out in the amended complaint herein, upon the ground that the cause of action set out in said amended complaint is barred by the provisions of subdivision 3 of

section 340 of the Code of Civil Procedure.” The objection was sustained, and plaintiff, after excepting to the ruling of the court, rested his case. The court, upon motion, then instructed the jury to find a verdict for the defendant, which they accordingly did, and judgment was entered thereon in favor of the defendant.

Plaintiff, in his notice of intention to move the court to vacate and set aside the verdict and judgment herein, and to grant a new trial, stated that it would be “made upon a statement of the case to be hereafter served, and upon the following grounds, viz.: ‘Errors in law occurring at the trial, and duly excepted to by said plaintiff.’ ” The following are the specifications of errors contained in the statement on motion for a new trial: “ 1. The court erred in striking out the testimony of the witness J. J. Rich, relative to the words used by the defendant given in support of the original complaint. 2.

The court erred in sustaining defendant’s objection to the testimony of the witness J. J. Rich, offered in support of the cause of action set out in the amended complaint.” The order shows that the new trial was granted on the ground last stated, the first having been waived by the filing of the amended complaint. The scandalous words laid in the original complaint are not qualified or altered in their sense or meaning by those proved to have been used by the defendant. The former are clearly embraced in the latter, and both substantially charge that the plaintiff is a thief.

As the cause of action is the same, it is evident that the object and effect of the amended complaint was simply to obviate a variance by conforming the allegations thereof to the proof.

The action was commenced, within the meaning of the statute, when the original complaint was filed, and it follows that the amended complaint relates to the commencement of the action; and as the original complaint shows on its face that the cause of action therein stated was not barred by the statute of limitations at the time it was brought, it follows that the new trial was properly granted by the court below on the ground stated in the order. The order appealed from should be affirmed, and we so advise. Belcher, C., and Foote, C., concurred. The Court.

For the reasons given in the foregoing opinion, the order appealed from is affirmed.