Everhart v. Bryson

• Citation: 149 S.W. 307,244 Mo. 507
• Parties: OWNBY EVERHART, Appellant, v. HENRY BRYSON
• Decision Date: 02 July 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 307

244 Mo. 507

OWNBY EVERHART, Appellant, v. HENRY BRYSON

Supreme Court of Missouri

July 2, 1912

Appeal from Audrain Circuit Court. -- Hon. J. D. Barnett, Judge.

Affirmed.

E. A Shannon and Barclay, Fauntleroy & Cullen for appellant.

(1) The court erred in refusing to give the jury the peremptory instruction asked by plaintiff. The answer admits the slander and does not plead the truth, and defendant admits the slander. In these circumstances the only question open is the amount of damages. Mitchell v. Bradstreet, 116 Mo 226. (2) The court erred in sustaining the objection to the question asked of witness Pool, what he understood by the words spoken of plaintiff by defendant. The hearer's understanding of the alleged slander is competent. Julian v. Star, 209 Mo. 35. And although the court was not unanimous as to the rule in a libel case, yet there is no dissent from this doctrine in a slander suit. Julian v Star, 209 Mo. 113. And in these cases hearers have been permitted to testify to their understanding of the alleged slander. Lewis v. Humphries, 64 Mo.App. 466; State v. Bonine, 85 Mo.App. 466; Barton v. Holmes, 16 Iowa 252; Binford v. Young, 115 Ind. 174; Proctor v. Pointer, 127 Ga. 134. That Pool's understanding was competent is also supported by the following authorities: Wagner v. Printing Co., 45 Mo.App. 6; Ball v. Pub. Co., 237 Ill. 592; Knapp v. Fuller, 55 Vt. 311. (3) The court erred in giving defendant's instruction 3. An intent not to vilify is no excuse for slander. Morris v. Sailer, 134 S.W. 98. (4) The court erred in excluding defendant's first answer. An abandoned pleading is competent as an admission. Lynch v. Railroad, 208 Mo. 1.

Robertson & Robertson for respondent.

(1) The language charged in the petition is not actionable per se. Newell on Slander & Libel (2 Ed.), 84; Christal v. Craig, 80 Mo. 372; Curry v. Collins, 37 Mo. 328; Carpenter v. Hamilton, 185 Mo. 615; Powell v. Crawford, 107 Mo. 595. The language charged in the petition is: "Everhart (meaning the plaintiff) and the negro Snell (meaning one James Snell), a negro man, ran off together once on money obtained by a forged check." Under the foregoing authorities it is quite clear that the language charged is not actionable per se, and it was necessary for the plaintiff in the petition, and so he recognized by the use of the innuendo, to apply these words to the plaintiff and to attempt to extend their meaning. The other charge of the petition was abandoned. The language set forth in the petition does not charge the offense of forgery, and on the face of it, it is as applicable to the negro as it was to the plaintiff. So then, it was a question for the jury to say whether or not the plaintiff had been slandered by the defendant. This question was properly submitted to the jury by the plaintiff's instructions and by the defendant's counter instructions. (2) The proof on the part of the plaintiff was uncertain as to the language used. The plaintiff depended solely upon the witness Pool to prove the language charged in the petition, and he could only give his best impression as to it. The plaintiff then used the deposition of the defendant theretofore taken to attempt to prove the language used, and that varied from the language charged; and, therefore, plaintiff failed in his proof of his allegations. At most it was a question for the jury to say whether or not the language charged was proven. This the plaintiff recognized in asking his instructions and in the first instruction based his right of recovery upon the language as charged. The language used by the defendant was not that the plaintiff ran off on money obtained by a forged check, but as submitted to the jury in the defendant's deposition it was that defendant had heard or understood that such was the case. The language used by the defendant was not substantially the same as that charged. The jury had the right to determine that the defendant used the language which he admitted in the deposition, and that was neither in the same phraseology nor substantially the same as charged in the petition, and under plaintiff's own instruction the jury had a right to return a verdict in favor of the defendant for failure to establish what the plaintiff had alleged. Christal v. Craig, 80 Mo. 374; Berry v. Dryden, 7 Mo. 324; Birch v. Benton, 26 Mo. 161. (3) There was no error in the court's refusal to allow the witness Pool to testify as to what he understood the defendant meant by the language used. The witness himself had already answered that question by saying that the language was in plain English, and there was no effort on the part of the plaintiff to show that the witness understood the language otherwise than as expressed by the defendant. Before the plaintiff was entitled to insist upon the overruling of the objection it must appear that the witness would have given some different answer from that which he had already given and that he understood the words in a different sense than their ordinary import. Before the plaintiff can be entitled to make complaint as to the sustaining of that objection it must appear that the plaintiff had some testimony excluded by reason of the objection. It was the duty of the plaintiff to state what he proposed to prove so that the court could judge of its materiality and relevancy. So far as appears from what took place at the time the witness had already answered the question and had no different answer of anything that was material. Hickman v. Green, 123 Mo. 179; Bank v. Aull, 80 Mo. 109; Jackson v. Hardin, 83 Mo. 175; State ex rel. v. Leland, 82 Mo. 260; Kraxberger v. Roiter, 91 Mo. 404; Berthold v. O'Hara, 121 Mo. 88. Where the meaning of the words used is plain and when used according to their natural and ordinary significance, the testimony of witnesses as to their understanding of the meaning of such words is not admissible. Branch v. Knapp & Co., 222 Mo. 597; Callahan v. Ingram, 122 Mo. 375. (4) The appellant is in error in his first point in stating that the answer admits the slander. The first part of the answer is a general denial and therefore denies the alleged slander. Neither in the subsequent part of it does it admit the speaking of the words charged, but further alleges that what defendant did say was simply in the relation of a circumstance not slanderous nor intended as such. The error of appellant's argument consists in assuming that the words charged in the petition are slanderous per se. It was a question for the jury as to whether or not the language used was slanderous, and that was properly submitted to the jury by instructions given at the request of both parties. Johnson v. Post-Dispatch, 65 Mo. 539. It is immaterial that the defendant used the words that he had understood or had heard the facts of the circumstance which he related and did not give the name of his author. The statement not being slanderous per se, removes it from the rule of the requirement to give the name of the author. Dole v. Lyon, 10 Johnson's Rep. 449. Before plaintiff can be entitled to recover in an action for slander in any case he must allege and prove that the words were actually used in an actionable sense and were applied to the plaintiff. Lewis v. Humphries, 64 Mo.App. 471; Julian v. Star, 209 Mo. 79; Israel v. Israel, 109 Mo.App. 366; Bridgman v. Armer, 57 Mo.App. 528; Newell on Slander & Libel (2 Ed.), 649.

FERRISS J. Woodson and Kennish, JJ., dissent.

OPINION

In Banc

FERRISS, J.

-- Action for slander upon the following petition:

"Plaintiff for his cause of action states that the defendant, on or about the 26th day of March, 1907, at the city of Centralia, in the State of Missouri, wilfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: 'Everhart (meaning the plaintiff) and a negro, Snell (meaning one James Snell), a negro man, ran off together once on money obtained by a forged check.' And said words were spoken in the hearing and presence of third parties; and by said words the said defendant did charge and intend to charge that the said Ownby Everhart had made and uttered a forged check upon some duly incorporated bank, and had obtained money upon said forged check, and the said words were so understood by the persons who heard them. Whereby plaintiff has been greatly injured in his good name and fame, to his damage in the sum of ten thousand dollars, five thousand dollars of which he says is actual damage, and five thousand dollars as punitive damages, for which sum of ten thousand dollars he prays judgment, and costs."

The answer is a general denial, and then this in mitigation:

"Defendant further answering, says that whatever words he may have spoken of and concerning the plaintiff were spoken without any ill will or malice toward him, and were not spoken with the intent to injure him, but at the time they were spoken the said defendant did not speak of and concerning the plaintiff as to his own knowledge, and so stated at the time, but defendant did say of and concerning the plaintiff that he, the defendant, had understood that the plaintiff had forged his, plaintiff's father's name, to a check, and in that way got some money by which he and the negro man, James Snell, had gone off together, but this defendant in relating said circumstance, in speaking of and concerning the plaintiff and his connection with the said check and the said James Snell, the negro man, stated what was current rumor in the vicinity in which plaintiff and defendant lived, and defendant stated at the time of using said words, that the information had come to him from others, and did not undertake to state the same to be a fact, and it was understood by the persons who heard...