Weller v. Provow

290 S.W. 1017 | Mo. Ct. App. | 1927

Lead Opinion

^* Corpus Juris-Cyc. References: Libel and Slander, 36CJ, p. 1177, n. 38; 37CJ, p. 59, n. 82; p. 86, n. 49, 58. This cause is for an alleged slander. Verdict went for defendant and plaintiff appealed.

The slander charged is as follows: "I went to Hampton Weller's store and saw Miss Anna Weller sitting on John Burrell's lap with her arms around his neck. When she saw me she jumped about ten feet, and he jumped about that far the other way. I like Mrs. Hampton and think she is a lady, but Anna Weller is a mean woman."

The answer admitted the use of the alleged slanderous language except the expression, "Anna Weller is a mean woman," and pleaded the truth of the language admitted to have been used. The answer also denies that the language used was spoken with malice and pleads in mitigation current rumor to the effect that plaintiff and John Burrell "were very affectionate and attentive to each other." A reply put in issue the new matter pleaded in the answer.

Plaintiff's evidence tended to prove the falsity of the alleged slander and defendant's evidence tended to support the allegations in the answer.

Error is assigned (1) on the refusal to strike out that part of the answer pleading current rumor in mitigation; (2) on the admission of evidence as to specific acts of alleged wrongful conduct on the part of plaintiff; (3) on the rejection of evidence; (4) on the instructions; (5) on the argument of counsel; and (6) on the ground that the trial judge was absent for a time during the argument. The first and second assignments are so related that they may be considered together. Plaintiff contends that evidence of specific acts of alleged misconduct on her part admitted in mitigation as we understand the record was error and prejudicial. The answer does not plead that defendant at the time of the alleged slander had knowledge of specific acts, and no specific acts were pleaded. Evidence of specific acts, under the issues, was incompetent on any theory. [Rose v. Tholborn, 153 Mo. App. 408, l.c. 414, 134 S.W. 1093; Vanloon v. Vanloon, 159 Mo. App. 255, l.c. 273, 140 S.W. 631; Crandall v. Greeves, 181 Mo. App. 235, 243, 168 S.W. 264.] This is not a case where the defendant is relying upon a general rumor to partially justify the use of the slanderous language. Here defendant claims to have seen with her own eyes that which plaintiff says did not occur, and from what defendant says she saw she stated, according to plaintiff's evidence, that plaintiff was a bad woman. The import of the language uttered is that plaintiff was unchaste and immoral. There is no contention that such is not the import. Plaintiff by bringing her cause for redress of the alleged wrong put in issue her general reputation for virtue and chastity, and this reputation, if bad, could be proved by defendant under the general issue in mitigation of damages. [Yager v. Bruce,116 Mo. App. 473, l.c. 495 et seq., 93 S.W. 307.] We find no case which supports the theory that idle rumor of, and general gossip of, specific acts may be shown for any purpose. It was not shown that defendant, at the time of the alleged slander, had any knowledge of any of the alleged specific acts offered in evidence and evidence of such acts, therefore, could not be competent on any issue here involved. Such is the law as we read it.

No particular harm came to plaintiff because the motion to strike was overruled. The harm, if any, came by the admission of evidence of specific acts on the issue of plaintiff's general reputation for virtue and chastity. Such evidence was incompetent and prejudicial and should not have been admitted.

The assignment that error was committed by rejecting evidence relates to certain evidence sought to be offered by plaintiff in rebuttal. If the cause is retried there will likely be no occasion for such complaint as here presented, hence it would serve no useful purpose to deal further with this assignment. Also the same may be said of defendant's Instructions 1 and 2. These may be so framed as to leave no room for complaint as here made against them. We do not deem it necessary to say more of the instructions.

It is not necessary to consider other assignments. The judgment should be reversed and the cause remanded, and it is so ordered.

Cox, P.J., and Bailey, J., concur.

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Addendum

ON MOTION FOR REHEARING. In the motion for rehearing able counsel vigorously urge that the evidence of specific facts and acts admitted in evidence was competent as tending to prove the truth of the alleged slander, and cite, in support of this contention, Nelson v. Wallace,48 Mo. App. 193, and Hess v. Gansz, 90 Mo. App. 439. In the Nelson case it was held that evidence that the slander sued for was only a repitition of a current report of long standing by which the plaintiff's general reputation had become impaired was competent in mitigation of compensatory damages. It was ruled that such evidence was competent in mitigation of compensatory damages because "the injury to reputation forms one of the main elements of compensatory damages." That was not a case involving the point here urged that evidence of other specific acts and facts is competent as tending to prove the truth of the alleged slander.

In Hess v. Gansz, the court, after reviewing the authorities said: "But we think it will appear, from the adjudicated cases which we have cited, that the great preponderance of authority is to the effect that in actions of libel and slander, the defendant should be permitted to introduce evidence that the plaintiff's general reputation was bad, in reference to the matters wherein he alleges he is libeled or slandered; and that general rumors, or general report or suspicion of the truth of the libel or slander charged, may be given in evidence by the defendant in mitigation of the damages. And the reason for this is that the action is for injury to the position and standing of the plaintiff among his fellows, by the utterance or publication of slanders tending to degrade him in their estimation and perhaps expose him to punishment; and the defendant may show that the plaintiff's general reputation is already bad, with a view of showing that no serious injury can have been inflicted upon him."

We find nothing in the two cases above cited or any other to sustain the contention that evidence of specific acts, facts and circumstances pertaining to other indiscretions is competent to prove the truth of the slander charged. No matter how many acts of indiscretion may have been committed by plaintiff, evidence of such acts would not be competent to prove that she sat on Burrell's lap with her arms around his neck. But it is argued that evidence of specific acts, facts and circumstances would be competent to prove that plaintiff was a "mean woman." In Yager v. Bruce, 116 Mo. App. 473, 93 S.W. 307, cited in the original opinion, the slander charged was that the defendant had said that "any man who voted for plaintiff would vote for a thief and further that plaintiff was a thief." There the defendant in his answer averred the truth of the charge, and in addition charged that plaintiff was guilty of two specific thefts. It was there ruled that "no proof of any specific theft was competent either to justify the speaking or mitigate the damages except those plead in the answer." Also it was ruled in Yager v. Bruce, that defendant had no right "to prove specific dishonorable acts amounting to larceny." There is nothing pleaded in mitigation in the answer here that charges plaintiff with any specific offense. If by her conduct plaintiff has established a bad reputation for virtue and chastity or as a mean woman such reputation may be proved in the usual way, but not by evidence of the specific facts and circumstances which caused the bad reputation.

It is also urged in the motion for rehearing that plaintiff is not in position to complain of the evidence of specific acts, facts and circumstances because timely objection was not made. It is true that while plaintiff and Burrell, as her witness, were on the stand they were asked on cross-examination without objection relative to some matters incompetent, but we do not think that such, in the state of the record here, should be construed as a waiver of the right to object to any of the incompetent evidence, respecting specific acts, facts and circumstances, offered by defendant.

The motion for rehearing should be overruled and it is so ordered. Cox, P.J., and Bailey, J., concur.