Sutton v. Smith

13 Mo. 120 | Mo. | 1850

HYLAND, J.

From the above statement it appears that the plaintiff, Sarah Sutton, sued John Smith in the Clay Circuit Court, in an action of slander. Smith filed his pleas of not guilty and justification. On the trial the plaintiff gave evidence to prove the words as charged ; and the defendant gave evidence, showing that the words spoken were induced by the act of the plaintiff, herself.

The words charged are, that “Mrs. Sutton stole my corn,” “that Mrs. Sutton stole our corn,” meaning tlie corn of said Smith and one John Ogden. The testimony of the plaintiff fully proved the words as • charged in her declaration. The defendant then proved, that the plaintiff had stated, “that Smith and Odgen had been watching her, and that she took an apron full of her own corn and went with it down to the crib, in order to devil them; she said they had been accusing her of stealing their corn : that when she had carried her corn down to the crib, she threw it to her hogs.” That knowing that she was watched by Smith and Ogden, she would go up to the corn crib, -and throw out to her hogs, her own corn ; that if she got hold on them (Smith and Ogden), she would make them smoke — she would sue them.”

It appears that the tract of land on which the plaintiff lived, had been bought at a sh eriff’s sale as the property of the plaintiff’s husband, Jonas Sutton, in his life-time by one Abram Creek ; that Creek sold the land to Smith, the defendant, and to John Ogden; that Smith and Ogden had raised a crop of corn on the land, and had put the corn in a crib on the place, near the mill house, and that the plaintiff still occupied the mansion house.

The main question for our determination arises on the instructions given by the court below. From these instructions, the jury were induced to find their verdict for the defendant on the issue, upon the plea of “not guilty,” aud for the plaintiff on the issue made-on the plea of “justification.”

I will here insert some of the instructions given for the defendant, 1st. If the jury believe from the evidence, that the words in the declaration mentioned were [as] published by defendant, were procured by the contrivance of the plaintiff, then they will find for the defendant. 3rd. If the jury believe from the evidence, that corn was placed in defendant’s crib, by plaintiff, without the knowledge of the defendant, and was afterwards thrown out by plaintiff to her hogs, in such manner as to deceive defendant, and to induce him to believe that it was his corn she fed to her hogs,,and that the circumstances of the case were such as to induce a reasonable belief of that fact,they will find for the defendant under the general issue.

The court of its own motion gave the following instruction. “If the jury find from tlie evidence, that the defendant spoke the words as charged in the declaration they will find for the plaintiff, unless they also find that the plaintiff was guilty of stealiug the corn as alleged in the plea of justification, or unless the speaking was procured by the contrivance of the plaintiff.”

These instructions present to us the main question in this case. There are some other minor points which we consider not worth our attention. .The question here involves the principle of the maxim volenti non fit injuria. We think the maxim very applicable to the circumstances of this case. G-reenleaf in his treatise on Evidence, 2nd volume, page 341, § 421, says, “under this plea (that is, the general issue), also, the defendant may prove the *88publication was procured by the fraudulent contrivance of tire plaintiff himself, with a view to an action.”

We fully accede to this authority, and consider it sufficient to sustain the court below in giving-the instructions in this case. No person has the right to entrap another, by false and fraudulent appearances, in order to induce an act on which to form a claim for damages in a court of justice. A plaintiff who will so act as to induce a reasonable man to charge him with larceny, should abide the effect of such a charge, without coining into court, and asking a compensation for the injury which he has thus voluntarily caused to be inflicted upon himself. He who thus acts, values money more than character.

We consider the instructions given in this- case were warranted by the facts as they appear from the record as well as the law governing such cases.

Upon the subject of costs, we think the court below ought to have taxed the costs of the February term, 1848, at which this suit was continued on the motion and application of the defendant, Smith, against said Smith. I am therefore for reversing this case so far only as regards the costs of that term, which should he taxed against the defendant. In all other matters, the judgment of the court below is, in my opinion,' correct, and my brother Judge Napton, concurring herein, the judgment of the court below is reversed, and this suit is remanded to the Circuit Court of Clay county, with directions to tax the costs of the said Eebmary term, 1848, against said defendant, Smith, hut in all other respects to remain as it is, there being no other error. .

Judge Birch, having been of counsel, did not sit in this case.