109 Mo. App. 366 | Mo. Ct. App. | 1904
(after stating the facts). — The errors assigned on this appeal relate exclusively to the rulings below on the requests for instructions to the jury. No special damage was stated to have attended the false charges in regard to the plaintiff’s treatment of her insane husband, nor was any special damage proved to have resulted from anything the defendant said. The charges regarding her behavior to her husband were not actionable without such proof, and, therefore, were withdrawn from the- jury’s consideration. But the imputation against the plaintiff’s chastity, if false and uttered maliciously, was actionable, per se by force of our statute. [E. S. 1899, sec. 2863; Hudson v. Garner, 22 Mo. 423.] It follows that if the defendant was proved maliciously to have made a' false imputation of that kind against the plaintiff, he was liable without proof that damage resulted, as the law presumes damage from the speaking. [Hudson v. Garner, supra; Hillebrand v. Dreinhoefer, 13 Mo. App. 586; Newell, Slander & Libel (2 Ed.), chap. 26, sec. 1.] The law presumes or implies malice, too, from the false utterance; the only malice that is requisite to make out a case for compensative recovery. [Callahan v. Ingram,
The defendant’s counsel insist they were entitled to the instruction requested, submitting the- question of whether the defendant, if he spoke the slanderous words, did so as mere abuse, neither intending to accuse the plaintiff of being unchaste, nor being understood in that sense by his auditors. That instruction was inaccurately drawn, as will be shown below. But
In Trimble v. Foster, just cited, it was said that if words were spoken sufficient to charge larceny, but accompanied with a specification of acts on which the charge was based which showed no larceny had been committed, a cause of action could not be predicated on such words. So in Hall v. Adkins, the defendant had said the plaintiff was stealing his (defendant’s) corn; but in making that statement there was evidence to show the defendant accompanied it with a statement of the facts on which he based the charge and which
If the slanderous language is spoken under excitement and passion, that fact may be given in evidence to mitigate the damages, as going to show want of actual malice on the part of the speaker and that his conduct does not deserve more punishment than may result from making the injured party whole. [Miles v. Harrington, 8 Kan. 425; Beardsley v. Maynard, 4 Wend. 336; s. c., 7 Wend. 560; Gould v. Weed, 12 Wend. 12; Dolvin v. Wilder, 34 How. Prac. 488; Brown v. Brooks, 3 Ind. 518; Zuraski v. Reichmann, 116 Iowa 388.] The court below allowed the jury to consider the defendant’s motive and intention in respect to the prayer for exemplary damages, and in doing so gave the defendant the benefit of any mitigation he was entitled to by the rule last mentioned.
But was the defendant entitled to have the jury say whether there was a complete defense to the action because it was fairly inferable that he neither meant, nor was understood to mean, an imputation against the plaintiff’s chastity? It is to be remembered that no such defense was attempted formally; but it seems to be admissible under the general issue. [Newell, Slander & Libel, p. 649.] The entire contention in regard to the words being used in a vituperative, instead of an accusing sense, is found in the fact that the evidence tended to show the defendant was angry and excited.
We have gone over the errors assigned for a reversal of the judgment and find that none of them was well taken.
The judgment is affirmed.