Cameron v. Cameron

• Decision Date: 06 February 1912
• Citation: 162 Mo. App. 110,144 S.W. 171
• Parties: CAMERON v. CAMERON.
• Court: Missouri Court of Appeals

144 S.W. 171

162 Mo. A. 110

CAMERON v. CAMERON.

Kansas City Court of Appeals. Missouri.

February 6, 1912.

Rehearing Denied March 2, 1912.

1. LIBEL AND SLANDER (§ 87)—PLEADING— FALSITY.

In the absence of demurrer to a petition for slander, an allegation characterizing the words alleged to have been spoken by defendant as "false and slanderous" sufficiently charged that the slanderous words were false.

2. LIBEL AND SLANDER (§ 24)—"PUBLICATION."

To constitute a "publication" of slander, it is essential that the defamation not only be heard, but be understood, by some third person.

3. LIBEL AND SLANDER (§ 24)—PUBLICATION.

Where the slanderous words were spoken by defendant in the presence of plaintiff and C., who were all seated at a table, and were uttered in a loud voice, and it was also shown that C. was not deficient in hearing and must have understood what was said, there was a sufficient publication.

4. LIBEL AND SLANDER (§ 123)—QUESTIONS FOR JURY.

In an action for slander, the question of the credibility of defendant and his witness, as well as the truth of their account of the quarrel and the uttering of the alleged slander, held for the jury.

5. LIBEL AND SLANDER (§ 7)—WORDS SLANDEROUS PER SE—"BITCH"—"WHORING BITCH."

A statement, made of and concerning a married woman, that she was "a God damned little black bitch" was not slanderous per se; but a further statement that she was "a God damned little whoring bitch" was slanderous per se.

6. LIBEL AND SLANDER (§ 124)—INSTRUCTIONS.

Where, in an action for slander, the court only authorized the jury to return a verdict for plaintiff on finding that defendant called

her "a whoring bitch," instructions, which merely followed the allegations of the petition, were not erroneous because they also coupled a nonslanderous epithet, alleged to have been used by defendant, in which he called her "a God damned little black bitch."

7. TRIAL (§ 121)—MISCONDUCT OF ATTORNEY —ARGUMENT TO JURY.

In a prosecution for slander, the evidence showed that it was published in the hearing of a negro, who, as witness for defendant, denied the uttering of the alleged slander. Plaintiff's attorney, in addressing the jury, declared that the petition in the case was founded on what the negro had told him as to what defendant called plaintiff, and then stated that "the negro was bought"; that defendant ought to have settled with plaintiff, instead of the negro, to which an objection and exception was taken, whereupon the court merely stated that the jury would disregard it; there being no evidence thereof. Held, that the argument was highly improper and prejudicial, and, in the absence of a proper reprimand, constituted reversible error.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Minnie Cameron against Alec A. Cameron. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

P. D. Kitt, J. H. Taylor, F. S. Hudson, and B. B. Gill & Son, for appellant. Scott J. Miller, for respondent.

JOHNSON, J.

This is a suit for slander, and is here on the appeal of defendant from a judgment recovered by plaintiff for $2,500 actual and $2,500 exemplary damages.

Plaintiff is the daughter-in-law of defendant, and at the time of the alleged offense was living with her husband on a farm owned by defendant in Livingston county. Defendant lived in Chillicothe, but helped his son work the farm, and therefore was a frequent visitor at plaintiff's home. Outwardly the relations between plaintiff and defendant were friendly, but some unpleasant incidents had engendered mutual dislike between them. On or about November 8, 1908, defendant was at the farm, and had dinner there in company with a negro farm hand named Curry. Plaintiff prepared and served the meal, during the course of which defendant complained of the absence of butter. Plaintiff answered that defendant took home with him all the butter produced on the place. Defendant contradicted her, and asserted that plaintiff sold all the butter. Thus far the evidence of the parties is in accord.

Plaintiff testifies that the quarrel over the butter culminated in defendant calling her "a God damned little black bitch." Plaintiff exclaimed, "Don't you call me that," whereupon defendant called her "a God damned little whoring bitch." The conversation was in the presence and hearing of the negro. Plaintiff seized a poker and started towards defendant, who, deeming discretion the better part of valor, beat a hasty retreat, not standing on the order of his going. A month later, and several days before plaintiff gave birth to her first-born child, she went to the barn to feed stock, and while there with her husband was again called "a God damned little black bitch" by defendant, who was annoyed because plaintiff refused to take a forkfull of hay "and climb over a manger and fence to fill a manger over there." On a subsequent occasion, defendant used the same expression in a quarrel he had with plaintiff. Defendant found some castaway jar rubbers which seemed useful to him, and accused plaintiff of wastefulness in throwing them away. Plaintiff retorted that defendant wasted biscuits on his dog, and then defendant hurled his favorite epithet at plaintiff.

Defendant denies in his testimony that he used the epithets we have quoted in the quarrel about butter, but admits he called plaintiff a liar. Though his version of his quarrels with plaintiff, if accepted, would relieve him of the charge of slander made in the petition, it shows he was guilty of coarse and brutal conduct towards his son's wife while she was in a condition deserving of kind and considerate treatment. The negro called as a witness by defendant corroborated the testimony of defendant.

The petition alleges "that the defendant, intending to injure plaintiff in her good name, fame, and reputation before her neighbors and friends, did, at her home in Livingston county, in the state of Missouri, on or about the 8th day of November, 1908, speak, in the presence and hearing of others, to, of, and concerning this plaintiff, and meaning this plaintiff, `You are a God damned little black bitch,' `You are a God damned little whoring bitch,' and did, on or about Friday, December 12, 1908, say to plaintiff, in the presence of others, `You are a God damned...