FRANK, Circuit Judge.
In 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.
There 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. It was not so egregious that we may consider it, Rule 51 notwithstanding.
Rule 51 provides: "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."
Plaintiff, 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. We think the judge did not err, since the proposed testimony was too vague, and accordingly might have misled the jury. We have considered the several other contentions of plaintiff and find them without merit.
The rulings of the judge occurred in connection with the following:
"Q. Now, Mr. Moore, while you were working for the Waring organization, did you get any other work outside of it through your connection with the various members of the band? A. Yes, sir.
"Q. And after you were discharged from the Waring organization did you get any of this work at all through any connections you had with members of the band individually? A. No, sir, nothing.
Affirmed.