153 Mo. App. 408 | Mo. Ct. App. | 1911
Action for slander. Plaintiff recovered a verdict for actual damages in the sum of eight hundred dollars, and defendant has appealed.
The petition charged defendant with having made various slanderous statements relating to plaintiff’s, character, but only two were submitted to the jury, to-wit: That defendant, in a conversation with one George Post, used the following language in relation to plaintiff. “You spent the night with Mrs. Rose,” and that defendant had, in a conversation with one Andy Mclnturff, used the folloAving language in relation to plaintiff: “Post spent the night with Mrs. Rose, and Mrs. Smith said she would make an affidavit to it.”' Defendant filed an answer , in which he had admitted making both of these statements, but justified on the ground that they were privileged communications. During the trial defendant was permitted to amend his answer by striking out that part in which he had admitted making the statement to Post. After having withdraAvn this part of his answer the plaintiff offered the withdrawn portion in evidence before the jury as an admission on the part of defendant.
Defendant, in his motion for neAV trial, assigned twenty-four errors committed by the trial court, all of which Ave cannot notice in detail, but will consider only those which we deem material as appears from the record in this case.
The petition alleged that defendant meant by the language used to charge her with having had illicit sexual intercourse Avith one George Post. When the case went to the jury defendant was in the position of having admitted using the language the petition charged he had used in the presence of witness Mclnturff, and his only defense to it was that under the circumstances the communication was privileged.
PriAdleged communications are of two characters.— absolute and qualified. A qualified privilege extends to all communications made bona fide upon any subject-
Defendant contends that under this testimony it was the duty of the court to instruct the jury that if they should believe from' the evidence that defendant made the statements charged under such circumstances that it was a privileged communication, and the issues should be found for defendant. The court did not give the instruction as asked but did give it as asked except
The evidence discloses that Post went East upon a vacation and that while he was gone the plaintiff moved into the room formerly occupied by Post at the home of Mclnturff, and while Mclnturff was testifying as a witness he was permitted to testify that defendant at one time in a conversation with him used the following language iu relation to plaintiff: “Is that Rose woman rooming at your house?” If she is you had better investigate her character.” It is contended by defendant that the-admission of this testimony was error for
Defendant offered to show by witnesses that the plaintiff had been seen sitting on the lap of Post in her room. Upon objection of plaintiff this testimony was excluded, and defendant now insists that error was committed in that respect. It’ was not permissible for defendant to attack the reputation or character of plaintiff by undertaking to show specific acts of immorality, and the court rightly excluded the offered testimony. [Yager v. Bruce, 116 Mo. App. 473, 93 S. W. 307; Shaefer v. The Railroad, 98 Mo. App. 445, 454, 72 S. W. 154; State v. Gesell, 124 Mo. 531, 27 S. W. 1101; Wright v. Kansas City, 187 Mo. 678, 693, 86 S. W. 452.]
Defendant’s counsel contends in his brief that the court erred in submitting to the jury the charge in the petition that defendant had said of the plaintiff “Post spent the night with Mrs. Rose,” on the ground that there was no evidence that defendant used this language. Why this contention should be made we are at a loss to understand for defendant expressly admitted in the answer that he did make that statement, and besides, Mclnturff testified that defendant did use that language concerning the plaintiff.
Defendant objected to all the instructions given on behalf of plaintiff and excepted to the refusal of all asked by defendant which were not given. The instructions are too numerous and too voluminous to discuss in detail, but in a general way they properly defined to the jury what is a privileged communication aa applied to this case, and told the jury that if defendant used the language charged against him in good faith and under a sense of duty which he felt that he owed
Defendant also contends that the verdict should have been set aside by reason of the conduct of one member of the jury. It appears from the affidavits filed in support of a motion for a new trial that the case was closed and Avas ready to submit to the jury at about ten o’clock p. m. and that one of the jurors, after being released for the night, walked home with a lady who had been subpoenaed as a witness for plaintiff and who was a friend of the plaintiff. That the juror and the witness had been seen in a whispered conversation before leaving the court house. Affidavits were also filed sworn to by the juror and the lady whom he had accompanied home in which they both stated that the case was in no way mentioned during their conversation. The court having overruled the motion for new trial must have been satisfied from these affidavits that nothing improper occurred and that the juror was in no way influenced by his association with this woman. We see no reason for interfering with the judgment of the court ou that question. The judgment will be affirmed.