Overton v. White

117 Mo. App. 576 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts).

1. Defendant contends that the uncontradicted evidence shows the communication from defendant to Henry was privileged and for this reason the judgment should be reversed. The slanderous words alleged in the petition to have been spoken by defendant to Henry was not admitted in the answer on which the case was tried. The pleader studiously avoided the admission made in the abandoned answers and indirectly denied that defendant uttered the slanderous words, or substantially the same words, by alleging a conversation with Henry in which no slanderous words were spoken about plaintiff. But in other portions of the answer it is stated in substance, that Elms’ son and daughters accused their father of living in sin, and by a narrative of facts it is insinuated^ that plaintiff participated in Elms’ sin. If defendant did not speak and publish the slanderous words charged in the petition, Ave are unable to see why he should or how he can claim, as privileged, the speaking of words he never uttered. But the case was tried on the theory that defendant was entitled, under his answer, to show that his communication to Henry was privileged. On the former appeal, in discussing this feature of the case, at page 277, 107 Mo. App., we said:

“In Finley v. Steele, 159 Mo. 1. c. 305, 60 S. W. 108, the Supreme Court adopted the following quotations as correctly defining 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 it. 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.’ ”

Mesdames Ward and defendant himself testified that in the conversation had between them, in respect to Elms living in sin, the plaintiff’s name was not mentioned, and the evidence of the women is that not only was plaintiff’s name not mentioned but the subject-matter of the conversation had no reference to her. The defendant also testified that he got the information he communicated to Henry from Mrs. Blanch Ward, therefore, if he spoke the slanderous words, alleged in the petition, to Henry, he spoke an untruth and could not have acted in good faith; for this reason if no other, we cannot say, as a matter of law, this communication was privileged!. The issue of privilege or no privilege, we think, was submitted to the jury by fair and correct instructions, to the granting of which the defendant made no complaint.

2. The principal error complained of is the giving of the eighth instruction, in respect to the probative force and effect of the abandoned answers read in evidence.

In Dowzelot v. Rawlings, 58 Mo. 1. c. 77, the Supreme Court, through Sherwood, J., said:

“It was perfectly competent for plaintiffs to offer in evidence the petition which the attorney of Rawlings, at the'latter’s instance, had filed in the suit against Pennison; and this wholly regardless of the question, whether Rawlings had ever seen the petition after it was drawn up, or not.

The act of the attorney was the act of the defendant, and any admissions contained in the petition, could he received against, and he binding upon him. Thus where a carrier brought trover against a person, to whom he had delivered the goods intrusted to him, and which were lost, the record in this suit was held admissible for the owner, in a subsequent action brought by him against the carrier, as amounting to a confession in a court of record, that he had the plaintiff’s goods.’ [1 Greenlf. Ev., secs. 195, 527.]”

The above case is approvingly cited in Anderson v. McPike, 86 Mo. 1. c. 301. But in that case the probative force of the admission in the answer offered in evidence was overthrown for the reason the attorney who filed it swore he had not been employed by the defendant.

In Walser v. Wear, 141 Mo. 1. c. 464, 42 S. W. 928, it is said: “The rule of this gtate seems to be that such pleadings (abandoned answers) are admissible in evidence when they contain admissions or statements of facts aginst the interest of the party in whose pleadings they appear.”

Weeks on Attorneys at Law (2 Ed.), p. 461, says, that an attorney may admit the facts on the trial or in the pleading by which his client will be bound is not questioned, and is the law.

Elliott, J., in Boots v. Canine, 94 Ind. 408, 412, said: “Our statute has adopted the equity practice, we try pleadings as statutory facts, not fictions. ... If it can be said that courts can presume that an answer under our Code does not state facts then it may be logically said that it is no- evidence, but if the presumption is that it does state facts, then it is logically inconceivable that it should not be evidence against the party. .

. . It is simply absurd to say that under our Code the statements in the pleadings are mere fiction and if they are not fictions then they are facts and if facts in some cases and in others conclusive admissions of record then they are evidence. An admission in a pleading is the admission of matters of fact; this seems so plain that it is difficult to understand how the contrary doctrine can be seriously asserted.” Our Code is like that of Indiana, and we think the reasoning of Judge Elliot is unanswerable.

Professor Wigmore says: “When a pleading is amended or withdrawn, the superseded portion disappears from the record as a judicial admission limiting the issues and putting certain facts beyond dispute. Nevertheless, it exists as an utterance once seriously made by the party. While thus denied all further effect as a pleading, may it not still be used as a quasi-admission, like any other utterance of the party?” The author then states the objections to the use of an abandoned pleading as evidence and answers them as follows: “So far as the argument from hurry and inadvertence is concerned, it would be equally valid against many extrajudicial utterances of the party. Yet no one has ever supposed that it afforded any reason for their rejection. The party is always at liberty to show the circumstances in explanation, to detract from the significance of his utterance. The other argument — that of the unfairness of allowing comment in argument, after the evidence closed — rests on incorrect premises, for the conceded rule (noted later) is that the superseded pleading, when thus used, must always be formally offered in evidence at the proper time, like all other matters of evidence. There is no reason why a retraction, based (perhaps) on better information, should affect the exclusion of this rather than of any other sort of statement, once made by the party and now offered against him:

“Elliot, J., in Boots v. Canine, 94 Ind. 408, 416: ‘We should feel that were doing an idle thing if we should undertake to cite authority upon the proposition that a party canot be deprived of his right to give in evidence an admission because tbe latter had withdrawn it. Even in criminal cases, an admission made by the accused before the examining magistrate is not rendered incompetent by a subsequent withdrawal. The withdrawal of an admission may, in proper cases, go in explanation, but it cannot change the rule as to its competency. We have never, until the argument in this case, known it to be asserted that the withdrawal of a confession or an admission destroyed its competency as evidence against the person making it. If it did, then criminals might destroy evidence by retraction, and parties escape admissions by a like course. The law tolerates no such illogical procedure. It is proper to show the withdrawal and all attendant circumstances, for the purpose of determining the weight to be attached to the admission, but not for the purpose of destroying its competency.’

“Such is the view generally accepted, although the rulings are by no means uniform.” [2 Wigmore on Evidence, sec. 1067.]

In Trask v. Ins. Co., 58 Mo. App. 1. c. 439, it is said that an admission arising out of an abandoned pleading, though admissible in evidence under our practice, furnishes the weakest kind of evidence and is subject to rebuttal. It seems to us that whether or not such an admission is weak or strong evidence, depends largely .upon the nature and character of the fact admitted, the number of times it was repeated, its materiality to the issues in the case and the knowledge or want of knowledge of the party making the admission of the fact admitted; and that it is the province of the jury, not of the court, to declare what weight should be given the admission. The admissions read in evidence by the plaintiff from defendant’s answers prima facie admitted plaintiff’s cause of action. The evidence to rebut these admissions was not conclusive, and we think instruction No. 8 furnished the jury a correct guide by which to determine what weight, if any, should be given the admissions.

3. Defendant offered to prove that reports in and around Woodland (where Elms resided) were unfavorable to Elms and plaintiff, in respect to their relation's to each other, and that these reports were current before the investigation of Elms’ conduct was started by the society of Bretlireu, and before the speaking of the alleged slanderous words by defendant to Henry. The exclusion of this character of evidence is assigned as error. Current rumor in Elms’ home town, unfavorable to his Christian character, might perhaps have justified the society of Brethren of which he was a member to have inquired concerning the rumors, but it does not appear from the evidence that the Brethren were stimulated to action by current rumors but were moved to take action by the accusations of persons who professed to speak from knowledge and not from rumor, and as the society was not on trial the good faith of its actions is not a question at issue in the case. If the purpose of the evidence Avas to bolster up the other insinuating evidence of defendant, tending to raise a suspicion that the relations betxveen Elms and plaintiff was meretricious, then it was not admissible. Current rumor is not infrequently a gross prevaricator; it is lower in the scale of evidence than mere hearsay; it is so low in the scale of human estimation that no one will father it, and surely a court of justice should not give it recognition as evidence tending to sIioav obliquity of moral character.

4. The defendant has presented in the bill of exceptions and had printed in his abstract, the address of L. P. Crigler, plaintiff’s counsel, to the jury and makes many criticisms of the speech. Mr. Crigler used this language: “I say that if this man Henry told three or four people that White told him that Miss Kersting and Mr. Elms were living in sin together at Elms’ house, we have four people to contradict Mr. White when he says he did not say it.” This was objected to. The court said that it was not proper and Mr. Crigler immediately corrected his statement by saying he called the name of White when he should, and intended, to call the name of Henry. The slip of Crigler’s tongue was corrected on the spot and could have done no harm. Besides the court, in instruction No. 9, specifically told the jury that the statements of the witness Henry to Holliday and the other impeaching witnesses, could not be considered as evidence against the defendant, but only went to the credibility of the witness Henry. We have discovered nothing else in the speech that warrants criticism; it is a little bit warm, hut no more so than such addresses usually are in a hotly contested lawsuit, as was this one.

5. It is finally insisted that the damages are excessive and show that the jury were influenced by prejudice and passion. The verdict in this case is not so large as to shock our understanding or impress us with a conviction that the jury were prejudiced or influenced by passion. In view of the pleadings, we think the case was conducted with liberality toward the defendant and that no prejudicial error against him intervened.

The judgment is therefore affirmed.

All concur.