54 Mo. App. 554 | Mo. Ct. App. | 1893
— Action for slander. The petition contains two counts. The cause of action stated in the first count was that the defendant, in the presence of others, called the plaintiff “a slut, a bitch and a whore.” In the second count the alleged defamatory matter was stated as follows: “ ‘You,’ meaning plaintiff, ‘are a street walker,’ ‘and that you,’ meaning the plaintiff, ‘fooled with the roomers to support Mr. Walters,’ meaning the plaintiff’s husband, and that ‘the $10 a week you,’ meaning the plaintiff, ‘paid while Mr. Walters,’ meaning plaintiff’s husband, ‘was at the hospital was made in a dishonest way,’ intending and meaning to accuse the plaintiff of adultery, by means of which the plaintiff has been, and is, greatly injured in her good name,” etc.
The answer contained a general denial.
On a trial before a jury the verdict was for $250 on each count, and judgment was entered for the total amount. The defendant has appealed.
I. The plaintiff was permitted by the court to read in evidence the testimony of a deceased witness, as preserved in a bill of exceptions which was filed on a former trial of the cause. In this it is claimed the court committed error, for the reason that there was no independent evidence that the testimony of the deceased witness, as contained in the bill, was correct or substantially so.
The rules of practice require the grounds of an objection to the admission of testimony to be stated as fully as the nature of the objection will admit of. Ordinary fairness to the court and the opposing litigant requires this. That the rule is a just and wise one is
II. In the second assignment of error the defendant challenges the sufficiency of the evidence to support the finding of the jury on the second count.
It is manifest that the defendant’s counsel entertained the opinion at the trial that there was some evidence to authorize the submission of this branch of the •case to the jury. His own instructions prove this. But as instructions cannot take the place of evidence— that is supply an entire failure of proof — and as one of •the grounds for a new trial was that the finding was -against the evidence, we must review the question. Link v. Harrington, 47 Mo. App. 262; State ex rel. v. Durant, 53 Mo. App. 493.
The plaintiff testified that the defendant, at the dime and place stated in the second count, said to her, in the presence of others: “You better go home and take your crazy husband yourself and tie him to the bedpost; do like you did before; put him,in the hospital, and make the ten dollars a week out of your boarders in a dishonest way. ” This was all the evidence in support of the second count.
There was no proof to show that the words were spoken in the sense stated in the innuendo, and that the hearers so understood them. This we think was necessary. The words of themselves are not necessarily ■defamatory. If the defendant meant to charge that the plaintiff, who was a married woman, had been guilty of acts of adultery with her boarders, and if the hearers so understood them, then a cause of action as ¡stated accrued, “for the slander and damage consist
In Dyer v. Morris, 4 Mo. 214, the defendant charged that the plaintiff’s daughter had gone to the “goose-horn at St. Louis.” Judge McG-iuk held that the meaning of the word “goose-horn” should have been averred, and it should have been alleged that the word was used in that sense, and that the hearers so understood it.
In the case of Unterberger v. Scharff, 51 Mo. App. 102, the following words were alleged to have been spoken: “What did you sell the butcher?” To which the plaintiff replied, “Nothing,” and thereupon defendant said to the plaintiff, “You’re a liar; you did, and stuck the money in your pocket.” We held in that case that the words were not actionable in themselves, and that it was necessary for the plaintiff to allege and prove that the words were meant to convey a sense in which they were actionable, and were so understood by the hearers.
So the supreme court in the case of Christal v. Craig, 80 Mo. 367, ruled that, where the words are not necessarily defamatory, it must be alleged and proved that they were spoken in such a sense as to make them actionable.
Mr. Townsend in his work on slander says: ■“When the language is ambiguous and it is doubtful in
In the case of Binford v. Youny, 115 Ind. 174, the court said: “Charges of unchaste conduct are seldom made in plain words, and it is often necessary to prove what the persons who heard the slanderous words understood the person who uttered them to mean.” To the same effect is Branstetter v. Dorrough, 81 Ind. 527.
Mr. Newell in speaking of words susceptible of two meanings, one defamatory and the other not, says: “If, however, the words are capable of the meaning ascribed to them by the innuendo, and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury to decide whether in fact .the words were understood in that sense by those who heard or read them.” Newel Slander, 770.
Odgers says: “Whenever the words sued on are susceptible both of a harmless and injurious meaning, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of publication.” Odgers on Libel and Slander [2 Ed.] 436.
We conclude that the finding'of the jury on the second count was unauthorized, and to that extent the judgment is unsupported by the evidence. If, however, the plaintiff will, within ten days after the filing of this opinion, remit two hundred and fifty dollars, the judgment for the residue will be affirmed. If this 'is not done, the judgment will be reversed and the cause remanded.
— The plaintiff has remitted her recovery on the second count, which results in an affirmance of the judgment for the residue. She now moves that the costs of the appeal be taxed against the appellant, owingto the peculiar features of the case.
Although by the express provisions of section 2931 of the Revised Statutes, the appellate or plaintiff in ■ error is entitled to costs only where the judgment is reversed, all the appellate courts in this state have awarded him costs in cases wherein the judgment was modified, or affirmed in part only. This ruling was on the theory that, if the judgment is modified in any particular, however slight, the judgment of the trial court is reversed pro tanto.
The present case, however, presents this peculiar feature. The consideration of the second count was not submitted to the jury either in the court’s instructions, or in those of the plaintiff. The defendant, himself by an instruction asked by him brought that count to the consideration of the jury, and his only valid complaint in this court now is that the jury have considered it at all and found on it, after he himself has requested them to do so. The necessity of the appeal -was thus the result of the defendant’s own improvident conduct. Since the judgment is affirmed against him in part and he is not entitled to costs under the literal terms of the statute, we feel warranted in departing from our usual rule and taxing the costs of the appeal against him. All the judges concurring, it is so ordered.