De Van Rose v. Tholborn

• Decision Date: 06 February 1911
• Citation: 134 S.W. 1093,153 Mo. App. 408
• Parties: DE VAN ROSE v. THOLBORN.
• Court: Missouri Court of Appeals

134 S.W. 1093

153 Mo. A. 408

DE VAN ROSE v. THOLBORN.

Springfield Court of Appeals. Missouri.

February 6, 1911.

Rehearing Denied March 7, 1911.

1. LIBEL AND SLANDER (§ 41)—"QUALIFIED PRIVILEGE"—PRIVILEGE.

A "qualified privilege" extends to all communications made bona fide on any matter in which the party communicating has an interest, or in reference to which he owes a duty to a person having a corresponding interest or duty, and to cases where the duty is not a legal one, but is of a moral or social character of imperfect obligation.

2. LIBEL AND SLANDER (§ 51) — QUALIFIED PRIVILEGE—MALICE.

In an action for slander because defendant stated to I. that P. "spent the night" with plaintiff, defendant testified that P. came to work for him as a stranger, and was desirious of finding a place to room, and that defendant introduced him to I. and recommended him so that I. let him a room in his house, and that defendant was thereafter informed that P. spent a night with plaintiff in her room, and that he thought it his duty to inform I. of such fact. Held, that the communication was not a privileged one if spoken with actual malice.

3. LIBEL AND SLANDER (§ 104)—EVIDENCE.

Evidence that defendant at another time asked I, if plaintiff was rooming at his house, and stated that, if so, I. had better investigate her character, was admissible as tending to show actual malice.

4. LIBEL AND SLANDER (§ 110)—EVIDENCE.

In slander for words imputing unchastity to a woman, defendant might not attack her reputation or character by showing specific acts of immorality.

5. NEW TRIAL (§ 47)—MISCONDUCT OF JURY.

That one of the jurors, after being released for the night, walked home with a woman who had been subpœnaed as a witness for plaintiff and who was a friend of the plaintiff, and that the juror and the witness had been seen in a whispered conversation before leaving the courthouse, was not ground for a new trial after verdict for plaintiff, where affidavits were filed by the juror and the witness in which they stated that the case was not mentioned in their conversation.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Patti De Van Rose against Walter Tholborn. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

M. R. Lively, for appellant. Clay & Davis, for respondent.

COX, J.

Action for slander. Plaintiff recovered a verdict for actual damages in the sum of $800, and defendant has appealed.

The petition charged defendant with having made various slanderous statements relating to plaintiff's character, but only two were submitted to the jury, to wit: That defendant, in a conversation with one George Post, used the following language in relation to plaintiff, "You spent the night with Mrs. Rose"; and that defendant had, in a conversation with one Andy McInturff, used the following language in relation to plaintiff, "Post spent the night with Mrs. Rose, and Mrs. Smith said she would make an affidavit to it." Defendant filed an answer in which he had admitted making both of these statements, but justified on the ground that they were privileged communications. During the trial defendant was permitted to amend his answer by striking out that part in which he had admitted making the statement to Post. After having withdrawn this part of his answer, the plaintiff offered the withdrawn portion in evidence before the jury as an admission on the part of defendant.

Defendant, in his motion for new trial, assigned 24 errors committed by the trial court, all of which we cannot notice in detail, but will consider only those which we deem material as appears from the record in this case.

The petition alleged that defendant meant by the language used to charge her with having had illicit sexual intercourse with one George Post. When the case went to the jury, defendant was in the position of having admitted using the language the petition charged he had used in the presence of witness McInturff, and his only defense to it was that under the circumstances the communication was privileged.

Privileged communications are of two characters —absolute and qualified. A qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he owes a duty to a person having a corresponding interest or duty; and to cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. Finley v. Steele, 159 Mo. 299, 60 S. W. 108, 52 L. R. A. 852; Holmes v. Royal Fraternal Union, 222 Mo. 556, 568, 121 S. W. 100, 26 L. R. A. (N. S.) 1080. If the communication was privileged in this case at all, it was only a qualified privilege. Defendant, in order to bring himself within the rule applied to a qualified privileged communication, testified that he was postmaster at Webb City, and that Post came to Webb City a stranger to clerk in the post office, and was desirous of finding a place to room, and, in order to accommodate him, defendant had taken him to witness McInturff's and introduced him to McInturff and recommended him as being a proper person to whom McInturff might let a room, and that Post was a gentleman and would be a proper person for McInturff to permit to associate with his family; that, while Post was occupying a room at McInturff's home, defendant...