55 Mo. 352 | Mo. | 1874
delivered the opinion of the court.
This was an action for slanderous words spoken.
The petition charged, that on the 1st day of November, 1870, plaintiff had in his possession a contract which had been previously entered into in writing between the defendant of the one part, and the directors of School District No. 7, in Township 61, of Range 21, Sullivan County, Missouri, on the other part, in regard to the building by defendant of a school house for said school district; and that said defendant on said 1st day of November, 1870, at Sullivan county aforesaid, in speaking of said contract in the presence and hearing of one Sherwood and others, spoke the following false and slanderous words of and concerning plaintiff, that is to say: “John Clements (meaning plaintiff) forged the words, ‘that he (plaintiff) should pay him (defendant) four hundred dollars on or before the 15th day of September, 1870, or as soon thereafter as the same could be collected off of said district, and that he could prove it by twenty-five men.” That he, John Clements (meaning plaintiff), forged the words, “That the work was to be done in a workmanlike manner in the contract; ” thereby intending and was so understood by those present, to charge the plaintiff with the crime of forgery, by which plaintiff claims that
Among other proofs introduced by plaintiff, was what purported' to be the written agreement referred to in the plaintiff’s petition, and together with said instrument, plaintiff offered to prove by oral testimony, that the agremeent offered in evidence was the same instrument to which defendant referred in making the charges against plaintiff, which are set forth in the petition, and which had been referred to by the witnesses in the cause. The defendant objected to the reading of the instrument in evidence, and also to the oral evidence identifying the instrument as the one referred to by defendant, 'on the ground that there was a variance between the instrument offered in evidence, and the one referred to by plaintiff in this, that the instrument referred to in the petition was described as executed by the defendant on the one part, and the School directors of School District No. 7 on the other part, while the agreement offered in evidence purported to have been executed on the part of the school directors of school district No. 8, and was only signed by the plaintiff as director of said district. The court overruled the objections to this evidence, and the defendant excepted. At the close of the evidence the court, at the request of the plaintiff, instructed the jury as follows:
1st. “That if the jury believe from the evidence, that defendant and plaintiff did on or about the first day of April,
2nd. “If the jury find for the plaintiff, they will assess his damages at any amount to which they may believe from the evidence that he is entitled, not exceeding the sum of one thousand dollars.”
3rd. “The jury in making their verdict may take into consideration all the facts and circumstances as detailed by the witnesses, and'in estimating the damages which they may think plaintiff has sustained, may take into consideration his circumstances and the injury to his feelings, and may add thereto as compensation for the injury smart money.”
4th. “If the jury believe from the evidence that defendant spoke of and concerning the plaintiff the words charged in the complaint, or substantially the same words and that they were false, then the law presumes that they were spoken wilfully and maliciously.” '
The defendant objected to these instructions and his objections being overruled, he excepted. The court then at the request of the defendant instructed the jury as follows:
1st. “That before the jury can find a verdict for plaintiff they must be satisfied from the evidence that the defendant spoke of and concerning the plaintiff the exact words mentioned in the petition, or enough of said exact words t-o make a material alteration of said contract, and that he charged plaintiff with making such alteration after the paper was executed; and the jury must exclude from their
2nd. “It devolves upon the plaintiff to make out his case to the satisfaction of the jury, and unless the jury in this case can find that plaintiff has made out a case as specified in the instructions by a preponderance in his favor of the testimony adduced, then the jury ought to find for the defendant.”
There were some other instructions given and refused, but they are not necessary to any real point raised in this court, and will not be further noticed.
The jury found a verdict in favor of the plaintiff for two hundred dollars. The defendant filed his several motions for a new trial and in arrest of the judgment, which being overruled by the court and a final judgment rendered on the verdict, the defendant again excepted and appealed to this court.
The first objection made by the defendant to the action of the Circuit Court, is as to the legality of the first” and second instructions given to the jury by the courtat the request of the plaintiff. The jury are told by said instructions, that i-f they find from the evidence that the defendant spoke the slanderous words set forth in the petition, of and concerning the plaintiff, or that he substantially spoke of and concerning plaintiff said words, and that they were false, they must find for the plaintiff. It is insisted by the defendant that these instructions are erroneous; that the identical words laid in the petition must be proved or at least enough of the words laid must be proved, to constitute the slanderous charge imputed or charged to have been imputed in the petition . There is no doubt but the proposition as stated by the defendant is correct. The same words or enough of the same words laid in the petition must be proved to constitute the offense charged to have been imputed, and it will not do to prove_ different words of similar import. (Birch vs. Benton, 26 Mo., 153; Reeman vs. Marks, 7 Blackf., 281, and other cases referred to.) The words charged in the petition and not the offense charged by the words must be substantially proved. (Fox vs.
This certainly states the law as strongly in defendant’s favor as he could desire it, and when taken in connection with the instructions given on the part of the plaintiff, amounts to a proper exposition of the law on the subject. It is very true that it will not always do for the court to give the jury instructions only embracing a partial view of the case, and tell the jury if they find the facts sustaining that view of the case, they should find for the plaintiff, and by another instruction presenting a different and partial view of the case tell the jury if they find the facts presented by that view of the case they must find for the defendant. Whenever such instructions are wholly inconsistent and contradictory, they are calculated to confuse the jury, and are pernicious and erroneous, however correct they may be in the abstract. JBut that is not the case with the instructions in this case; they are not, when
The next objection made by the defendant to the proceedings had in the Circuit Court is that the court improperly instructed the jury that if they found for the plaintiff in estimating his damages they might take into consideration all of the facts and circumstances detailed by the evidence, and that they might take into consideration the circumstances of plaintiff and the injury to his feelings and that they might add thereto as compensation for his injuries “'smart money.” It is objected to this instruction that there was no evidence in the case tending to show the circumstances of the plaintiff, and therefore it was wrong to instruct the jury on that subject. It is shown by the evidence that the plaintiff was a school direct- or, and that the contract in which the forgery was charged to have been made, was made by plaintiff in his official capacity. This does tend to some extent to show his circumstances in life and serves to characterize the whole transaction and show its publicity. The circumstances of the plaintiff referred to in the instructions, must not be confined to the facts relating to his pecuniary condition and whether he had a family and matters of that kind; but the reference should be to all of the circumstances of the case which give character to the slander and the injury occasioned thereby, and it was proper tha-t the jury should be instructed to take such facts into consideration, and it was also proper to instruct them that they might give punitive damages. (Buckley vs. Knapp, 48 Mo., 152; Larned vs. Buffington, 3 Mass., 546; Bump vs. Betts, 23 Wend., 85.)
It is next insisted by the defendant that the court erred in admitting the evidence of the witness Atkins, in reference to the written contract, to which the charges set forth in the petition related, and in also admitting said contract in evidence. The only ground of this objection is that the contract proved was variant from the one referred to in the petition
This afforded the defendant a remedy if he had been misled by the variance between the instrument proved and the one described in the petition, and if he failed to avail himself of this statute, it is too late to complain in this court.
There are some other immaterial points raised in the court below, but they are not insisted on in this court. We see no material error in the record.
The judgment will be affirmed.
