185 Mo. App. 325 | Mo. Ct. App. | 1914
This is a suit for damages’ on account of an alleged slander. Plaintiff recovered and defendant prosecutes the appeal.
It appears that plaintiff and defendant resided near each other in Mississippi county and the families of both were engaged in farming. Plaintiff and her husband resided on and cultivated a portion of defendant’s farm and so, too, did John Walker and his w-ife. Several head of Walker’s cattle trespassed upon defendant’s wheat field and defendant put them in a lot. About this time, Mrs. Susie Walker came up to look after the cattle and solicit their release. While Mrs.
The evidence for plaintiff tends to prove that these words were spoken and uttered by defendant of and concerning plaintiff and Mrs. Walker, in the presence and hearing of several persons — that is to say, in the presence and hearing of a Mr. Jones, defendant’s father, and Sarah Walker, a young girl about thirteen years of age, and defendant’s hired hand, Chandler, besides plaintiff’s two children, one of them a little girl, Carmen, aged about seven years, and a boy aged about nine or ten years. Defendant and another witness for her, who says he was present at the time, both stoutly deny that any such words were spoken by defendant of and concerning plaintiff or anyone else. It is admitted, however, that there was a controversy between the parties and some sharp words ensued, but the speaking of the defamatory and slanderous words is denied throughout. The evidence for plaintiff 'is abundant, however, to the effect that defendant spoke of and concerning her and Mrs. Walker the precise words charged in the petition. The jury found the issue for plaintiff as though defendant uttered the
There are numerous errors assigned, but some of them find no support whatever in the record, while, others are devoid of merit and will, therefore, not be noticed.
The words spoken of .and concerning plaintiff— that is, that she was a “whoring bitch” — are slanderous per se and carry with them an imputation of fornication and unchastity. [Cameron v. Cameron, 162 Mo. App. 110, 144 S. W. 171.] The speaking of such words of and concerning a woman in the presence and hearing of others, when found to be untrue, implies malice on the part of the utterer, so that it is not necessary to prove express malice with respect to the speaking of the words charged, for such malice is presumed, and the burden lies with defendant to dispel or mitigate it. [Miller v. Dorsey, 149 Mo. App. 24, 129 S. W. 66.]
The court submitted the issue to the jury through giving plaintiff’s principal instruction, No. 1, as follows :
“The court instructs the jury that if you believe from the evidence that the defendant, Mary E. White, on or about the 22nd day of December, 1909, and within two years before the bringing of this action, spoke the words imputed to her, to-wit: ‘You are both whoring bitches,’ meaning this plaintiff and another, and if you further believe from the evidence that the words spoken were false, then you should return your verdict for the plaintiff.
“You are further instructed that it is not necessary for the plaintiff to prove that said words were malicious as, under the law, the mere use of said words is evidence of malice, if you believe and find from the evidence that said words were used of and concerning the plaintiff by the defendant.”
The instruction above copied, which is the principal one given and authorizes a verdict for plaintiff as if it covered the whole case, required no finding whatever on the part' of the jury as to whether the words spoken were heard and understood in their usual sense by those present. In this the instruction is deficient, and, indeed, none .other given on the part of plaintiff requires a finding with respect of this matter, but all authorize a verdict as though it were enough for defendant to speak the defamatory words of and concerning plaintiff, whether heard and understood by others or not. ■ It is true several witnesses who were present say defendant spoke the words as charged and that they heard them, but others, who were likewise present, insist to the contrary, as does defendant herself. It is entirely clear that plaintiff’s instruction above copied is erroneous, in that it amounts to mis
But it is argued this error was cured by defendant’s instruction No. 5, given at her instance. Defendant’s instruction No. 5 does not in terms require the jury to find that the words spoken were uttered in the presence of and heard by others, but rather treats with the matter of intention on the part of the utterer. Indeed, it requires no more than that the jury find that “defendant meant to accuse Sadie Traylor with whoredom and that such language was so understood by the person other than Susie "Walker and Sadie Traylor, who heard the same.” However this may be, the error in the instructions given for plaintiff covering the whole case is not cured by that referred to on the part of defendant, for the reason plaintiff’s instruction amounts to a misdirection of the jury and authorizes a verdict on facts insufficient to justify it. as a conclusion of law. Though it be true that the instructions given in the case must be read and considered together and one instruction will frequently be regarded as amplifying a partial view so as to cure another, the rule is, that where plaintiff’s instruction covers the whole case and authorizes a verdict for plaintiff on an erroneous theory of the law, one on the part of defendant touching the same matter will not supply a deficiency in plaintiff’s instruction which omits to require the finding of facts essential to sustain the cause of action. [See Wilks v. St. Louis & S. F. R. Co., 159 Mo. App. 711, 727, 141 S. W. 910; Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260, 87 S. W. 506; Ghio v. Schaper Bros. Merc. Co., 180 Mo. App. 686, 163 S. W. 551.] Here, plaintiff’s instruction authorized a verdict for her on the mere finding that.the words were spoken and were untrue in point of fact, without regard to the element of publication, which is essential in every slander— that is, that they were heard and understood by others.