Kersting v. White

Lead Opinion

BLAND, P. J.

(аfter stating the facts). — This instruction for nonsuit raises the question whether or not plaintiff, by reading the whole of defendant’s three answers as evidence in the case, proved herself out of court by offering evidence tending to show that the communication she complains of was qualifiedly a privileged one and by failing to prove actual malice in its publication. These answers tend to show that Elms, Henry and the defendant were members of a religious society banded together for the purpose of conducting religious and moral teaching and exercises; that complaint had been made to the society that Elms was violating the tenets of the society by living in a staté of sin with the plaintiff at his home; that the members of the society were making a preliminary inquiry into these charges or rumors for the purpose of ascertаining whether or not there was sufficient evidence against Elms to warrant'the preferment of formal charges against him with the view of putting him upon trial; that on the evening previous to the day defendant spoke the words complained of to Henry, there was a meeting of the society at which Henry was present and at which the charges against Elms were discussed; that defendant was not present at this meeting and cаlled on Henry the next day to learn of him what had transpired at the meeting in regard to the Elms matter; that in the course of their conversation, defendant said to Henry that Mrs. Blanch Ward, a daughter of Elms and a member of the Christian church, had stated in substance that Elms and plaintiff were living at the Elms residence in a state of sin; that defendant believed this statement to be true and repeated it in perfect good faith to Henry, but tо no one else nor in the hearing of any one else; that the charge was not news to Henry for the reason he had been informed of it beforehand from other sources.

In Finley v. Steele, 159 Mo. l. c. 305, the Supreme Court adopted the following quotations as correctly definding qualifiedly privileged communications:

“In Byam v. Collins, 111 N. Y. 143, it is said: ‘A libelous communication is regarded as privileged, if made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although if contains criminating matter which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. ’

“In speaking of the proper meaning of privileged communications in Klinck v. Colby, 46 N. Y. 427, it is said: ‘The proper meaning of a privileged communication, is said to be this: that the occasion on which it was made, rebuts the inference arising, prima facie, from a statement prejudicial to the character of the plaintiff; and puts it upon him to prove that there was. malice in fact, and that the defendant was actuated by motives of personal spite or ill-will, independent of the circumstances in which the communication was made.’ But when the paper рublished is a privileged communication, an additional burden of proof is put upon the plaintiff and he must show the existence of express malice.

“It is announced in Marks v. Baker, 28 Minn. 162, that ‘the rule is that a communication made in good faith, upon any subject-matter in' which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a сorresponding interest or duty, is privileged; that in such case the inference of malice . . .is east upon the person claiming to have been defamed.’

“In Briggs v. Garrett, 111 Pa. St. 404, it was held that a communication to be privileged must be made on a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made in good faith the law does not imply malice from the communication itself as in the ordinary case of libel.” And the court held, on the authority of Henry v. Moberly, 6 Ind. App. 490, and Stewart’v. Hall, 83 Ky. 375, that where the communication was shown to be a qualifiedly privileged one, “actual malice must be proved ‍‌​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‌‌​‌‌‍before there can be a recovery, and in the absence of such proof a nonsuit should be granted. ’ ’

In Buisson v. Huard, 56 L. R. A. 300, 106 La. 768, the Supreme Court of Louisiana said:

“Among the occasions on which the statements of pаrties touching another person are protected as a privilege qualifiedly are where the circumstances of the case are such as cast a duty upon the former of making them in the hona fide performance of such duty. These communications may he made sometimes to an entire stranger, sometimes .to parties between whom and themselves there are intimate relations of friеndship, sometimes they may be made under a sense of duty to his own family or to himself. The same words which, uttered to one person, may be held privileged, might not be so held when uttered to another. The duty referred to need not be a legal duty. Any moral or social duty of imperfect obligation will suffice. It is sufficient if he honestly believe that he has a duty to perform in the premises, though it may turn out that the circumstances were nоt such as he reasonably concluded them to be. He must, however, have believed in the truth of his statements at the time he made them. If a man knowingly makes a false charge against his neighbor, he can not claim privilege. It never can be his duty to circulate lies. Even when a man, in making statements, is acting under a strong sense of duty, and believing in their truth, he should not be lead away, even by honest indignation, into exaggerated оr unwarrantable expressions, for the privilege extends to nothing which is not justified by the occasion.”

In Hemmens v. Nelson, 138 N. Y. 517, 20 L. R. A. 440, it is said: ‘ ‘ Statements by the principal of a deaf mute institute, who was’really its executive head and manager charged with the duty carefully to observe the moral conduct of teachers as well as scholars, made to the executive committee and president of the board of trustees, which have a сorresponding duty in respect to the welfare of the institution, to the effect, that a superintendent of the sewing department, who also instructed a class in sewing, had sent to his wife an obscene publication, are confidential and privileged, if believed by him to be true, and are not actionable unless express malice or malice in fact is shown on his part.” The court further said: “This Mud of malice, which overcomes and destroys.the privilege, is of course quite distinct from that which the law, in the first instance, imputes with respect to every defamatory charge, irrespective of motive. It has been defined to be an ‘indirect and wicked motive which induces the defendant to defame the plaintiff.’ Odgers, Libel & Slander, 267.”

In Caldwell v. Story, 45 L. R. A. 735, the Supreme Court of Kentucky said: “A communication made in good faith upon any subject in which the persоn has an interest, or with reference to which he has a duty, public or private1, either legal, moral, or social, if made to a person having a corresponding interest or duty is privileged.”

In Redgate v. Roush, 48 L. R. A. 236, the Supreme Court of Kansas said: “Where the officers of a church upon inquiry, find that their pastor is unworthy and unfit for his office, and thereupon, in the performance of what they honestly believe to be their duty tоward other members and churches of the same denomination, publish, in good faith, in the church papers, the result of their inquiry, and there is a reasonable occasion for such publication, it will be deemed to be privileged and protected under the law.”

In Cherry v. Des Moines Leader, 54 L. R. A. 855, the Supreme Court of Iowa held: “A verdict must be directed for defendant in the absence of anything to show ill-will or malice, in an аction for the publication in a newspaper of an article ridiculing in exaggerated and uncomplimentary terms a public entertainment which is not only childish, but ridiculous in the extreme.”

' The defendant according to the evidence offered by plaintiff owed the society of which he was a member, the moral duty to aid in purging it of any unworthy ‍‌​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‌‌​‌‌‍or immoral member and to communicate to it any information he honestly believed to be true, showing immoral conduct of a member whose character was under investigation by tbe society. It is plain, therefore, if he had made the communication at the meeting of the society on the evening preceding the day he made it to Henry, it would have been privileged. Is it any the less so because communicated in a confidential manner in a conversation with a member of the sоciety in respect to what had taken place at the meeting, when, as the evidence showed, the communication was but a restatement of a report which the member to whom the communication was made had previously heard from other sources? We think not. In the circumstances set out in the answers, the conversation between defendant and Henry was about a matter in which both were interested, and if the defendant believed the reported statement of Mrs. Blanch Ward, in respect to her father and the plaintiff, to be true, then to communicate the fact to the society as a body or to one member or all the members of the society would be but the discharge of a moral obligation, and we think it wholly immaterial whether the communication was made to the society as a body or to оne of its members, if the defendant believed the communication to be true and made it in good faith, it was privileged. Thb evidence offered by plaintiffs tends to show that the défendant did believe the communication to be true and that he acted in perfect good faith. There was no allegation in the answer that the .communication was a qualifiedly privileged one, hence the defendant could not interpоse that as a defense. But if plaintiff by her own evidence conclusively showed the communication was a qualifiedly privileged one. and offered no proof whatever of express malice then the court should have nonsuited her, notwithstanding the failure of defendant to plead his privilege. Plaintiff was not bound by all the statements of defendant made in his abandoned answers read in evidence by plaintiff; admissions made therein against the interest of defendant, the law would presume to be true. Feary v. Railway, 162 Mo. l. c. 105; Erwin v. Railway, 94 Mo. App. 289. But what is asserted in the answers in defendant’s favor the law does not presume to be true. The general rule is that where a party introduces in evidence a writing as an admission of the adverse party, the whole becomes evidence in the case. But it does not follow that all parts are equally worthy оf credit, and it is for the jury to consider under all the circumstances how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor as those made against him. 1 Greenleaf on Evidence (16 Ed.), sec. 201; Bristol v. Warner, 19 Conn. 7. Whether or not the circumstances under which the actionable words were communicated made them privileged, and, if so, whether or not the defendant acted in good faith, were questions of fact for the jury and the court properly denied the demurrer to plaintiff’s evidence.

The admission of the evidence of plaintiff in respect to the conduct of the Buss family towards her before and after the publication of the slander, we think was erroneous. In the second edition of Odgers on Libel and Slander, page 231, the author says: “When it is clear that the actiоn lies without proof of any special damages any loss or injury which plaintiff has sustained in consequence of defendant’s words, even after action brought, may be proved to support the legal presumption and to show from what has actually occurred how injurious and mischievous those words were.” This ■ character of evidence seems, however, to be admissible only for the purpose of showing a loss of professional earnings or trade following the publication of the libel or slander. Newell on Slander and Libel (2 Ed.), p. 929, says: “The special damage must be the direct result of the defamatory words.” In Olstead v. Brown, 12 Barb. 657, the court said: “It is a rule equally consistent with good sense, good logic and good law that a person who would recover damages for an .injury occasioned by the conduct of another must shоw, as an essential part of his case, the relation of the cause and effect.” This paragraph of the opinion is approvingly quoted in 3 Sutherland on Damages, vol. 4, sec. 1221. It is a mere matter of conjecture that the changed demeanor of the Buss family toward the plaintiff was attributable to the slander. It might have been from some other cause having no relation whatever to the slander apd such testimony should not have been admitted without some direct evidence that the change of conduct was influenced by the publication of the slander.

Judgment reversed and cause remanded.

Reyburn and Goode, JJ., concur.

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Concurrence Opinion

GrOODE, J.

(concurring). — As this case has received great attention I will state separately my reasons for concurring in the result.

The abandoned answers were the. only evidence introduced by plaintiff to show defendant ever made a statement derogatоry to her character. Those answers contain an admission that the defendant had stated to one Edward Henry, who had made sipiilar statements to the defendant, that Mrs..Ward had said her father J. C. Elms, was “living in sin at the house of said Elms,” and other statements tending to show plaintiff was a participant in the sinful life of said Elms. One of-the answers contains the following allegation: “And this defendant further states ‍‌​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‌‌​‌‌‍that at the time he mentioned said statement (viz., Mrs. Ward’s) to said Henry, he, said Henry, made a.statement to defendant that he had heard said charge and’said statement of said lady made and that he believed it to be true when he heard it before.” All the defendant did to put any slander concerning the plaintiff into circulation was to repeat to Henry that he (defendant) had heard of a statement made by Mrs. Ward which Henry told defendant of hearing previously. That defendant repeated the statement to any other person or that what defendant said went beyond Henry, there was no evidence to prove.

Whether an alleged slanderous communication is privileged is matter of law for a court to determine when the circumstances and the occasion of the communication are undisputed. Newell, Slander & Libel, par. 9, p.391; Townshend, Slander & Libel (4 Ed), sec. 288; Callahan v. Ingram, 122 Mo. 355; Wagner v. Scott, 164 Mo. l. c. 302. The rule is perhaps modified by our statute making juries in such cases judges of both the law and the facts. If the circumstances under which the words were spoken are in dispute they must be found by the jury, and it is then proper to give a hypothetical instruction that if the jury find the words were spoken on a given occasion and under certain circumstances (namely, such as render the words privileged) the verdict must be for the defendant. But words which wоuld enjoy a qualified privilege when uttered in good faith and without actual malice, are actionable if the motive was slanderous or if they were known to be untrue. Newell, par. 9, p. 391; Wagner v. Scott, 164 Mo. 302. And malice may be implied from the fact that the statement was false. Callahan v, Ingram, Wagner v. Scott, supra. The alleged slander of which the defendant was accused was actionable per se. Stieber v. Wensel, 19 Mo. 513; Hudson v. Garner, 22 Mo. l. c. 423. There is conflict in the cases as to whether the defense of privilege can be availed of under a general denial or must be specially pleaded. The following authorities hold that a special plea in bar is not necessary to raise the defense of a privileged occasion in an action for slander, but that evidence in support of that defense may be given under the general issue. Newell, p. 449 and citations in note; Atwater v. News Co., 67 Conn. 504; Fero v. Rusco, 14 Comstock (N. Y.) 162; Johnson v. Brown, 13 W. Va. 71. These authorities hold that it is not available unless specially pleaded. Gilman v. McClatchy, 111 Calif. 606; Hess v. Sparks, 44 Kas. 470; Goodman v. Daniels, 89 Mass. 61. Bnt even if it is necessary to plead the privilege in order to let in evidence to establish that defense, it would seem that if a plaintiff proves facts showing the communication was privileged, the defendant ought to be permitted to avail himself of it. Moore v. Bank, 51 Hun 472. The answers introduced by plaintiff to substantiate her case showed the alleged slanderous words were spoken under circumstances which justify the ruling that they were privileged unless the defendant’s motive was malicious. It is true the plaintiff was not a member of the religious society to which the defendant belonged; but Elms, of whom the words ‍‌​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‌‌​‌‌‍were spoken and Henry, to whom they were spoken, were. The facts tend to show "White wаs , consulting with Henry in good faith as a member of that society about a rumor in regard to Elms, another member, which rumor involved the plaintiff’s name. That she was not a member of the society is immaterial if White acted in good faith. Etchison v. Pergason, 88 Ga. 620. Nor is it material whether the society was a church or not. It was a voluntary association of persons pledged to maintain good morals among the members. 18 Am. & Eng. Ency. Law (2 Ed.), 1035; Barrows v. Bell, 7 Gray 301, 66 Am. Dec. 479. If the allegеd slander was spoken by White to Henry under the circumstances stated in the answers, it was innocently done and may well be held to come within the class of statements enjoying a qualified privilege. Plaintiff might have contradicted the allegations of the answers as to the circumstances attending the utterance of the alleged slander by other evidence; but they were not contradicted. The crucial questiоn is how far were the statements in the answers which were put in evidence by plaintiff, binding on her as to the circumstances surrounding the utterance of the slander and White’s motive? If they are conclusive as to those points, the plaintiff’s cause is defeated by them. But I think they were only evideuce for the jury to weigh. Plaintiff swore the accusation against her character was false and if the jury so found, malice would be inferable from that fact alone, subject to rebuttal by showing the occasion justified the defendant in speaking. Newell, p. 391, par. 9. The allegations in the answers of a laudable motive on the part of White were to be considered, along with the falsity of the charge, on the issue of malice or good faith and as to whether the words were spoken under circumstances that rendered them privileged. Greеnleaf says of such evidence:

“It does not follow that all the parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him. ’ ’

As to the defense that White only repeated a charge made by Mrs. Ward, giving her nаme at the time as his authority, White’s motive is important. One may repeat a slander as the utterance of another and nevertheless be liable if he does so knowing the statement is untrue and from a desire to injure the person slandered. This was decided in the case relied on by defendant : Church v. Bridgman, 6 Mo. l. c. 193. But if a person repeats a slanderous remark with no evil intention and gives his informant’s name, he may plead the fact-in mitigation of damages, not in justification. Newell, p. 894.

Improper testimony was received to show the damages plaintiff sustained. The real source of the slander was Mrs. Ward; and while the defendant was liable for repeating it in a way to injure the plaintiff, it is difficult to see how his doing so could work substantial damage, as Henry was apprised of all the facts and had told the defendant more in derogation оf plaintiff’s character than defendant told him. I agree that the testimony in regard to the demeanor of the Buss family to the plaintiff was incompetent and very prejudical. No showing was made that any member of that family ever heard of "White’s statement to Henry or that any one but Henry ever heard of it. To allow the jury to conjecture that what White said to Henry caused the Buss family to alter their behavior to the рlaintiff, in view of the fact that the rumors against her were so general that there had been an investigation! of their truth by a society of the community, was palpably erroneous and amounts to holding the defendant responsible for conduct of other people which he may have had nothing to do with. I can think of no rule by which that evidence was admissible.

The judgment against the defendant ought ‍‌​‌‌‌​​‌‌​‌‌‌‌‌​‌‌‌​‌​‌‌​‌​‌​‌​‌​​​‌​​​‌‌‌​‌‌​‌‌‍to be reversed and the cause remanded.

Case Details

Case Name: Kersting v. White

Court Name: Missouri Court of Appeals

Date Published: May 17, 1904

Citation: 80 S.W. 730

Court Abbreviation: Mo. Ct. App.