Lemaster v. Ellis

• Decision Date: 07 July 1913
• Parties: LEMASTER v. ELLIS.
• Court: Missouri Court of Appeals

158 S.W. 904

LEMASTER v. ELLIS.

Springfield Court of Appeals. Missouri.

July 7, 1913.

Rehearing Denied July 25, 1913.

1. LIBEL AND SLANDER (§ 100) — PLEADING — SUFFICIENCY OF PETITION.

The sufficiency of the petition, in an action for slander, is not to be judged by the sufficiency of the allegations therein which are actually proven.

2. LIBEL AND SLANDER (§ 123) — QUESTION FOR JURY — MEANING AND IMPUTATION OF WORDS.

Proof of the alleged speaking of the words: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo" — would make a case for the jury, since even where the words spoken are not slanderous per se, the question whether they are reasonably capable of imputing and being interpreted as containing a slanderous meaning is for the jury, upon consideration of all the circumstances.

3. LIBEL AND SLANDER (§ 112) — EVIDENCE — SUFFICIENCY — EXACT WORDS.

In making a case of slander, the plaintiff is required to prove sufficient of the exact words charged to constitute slander, and proof of equivalent words will not suffice, and where the petition alleged defendant's speaking of the words: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo," and plaintiff proved that defendant, when asked if he had said that he had heard that plaintiff's brother-in-law and herself had run away, and that they were gone and were in Pueblo together, replied: "Yes; I was talking with Mr. Wagnant, * * * and asked him if he had heard anything of that kind, and he said `Yes,' he had heard it and believed it," and defendant at the trial admitted that he did say to Wagnant, "I have heard that Baxter and Nora (plaintiff) run off together" — held that, while defendant's admission did not sustain the special

allegation, yet, taken with his testimony, it constituted proof of the precise charge of slander alleged.

4. TRIAL (§ 243) — INSTRUCTIONS — CONTRADICTORY AND CONFUSING INSTRUCTIONS.

In an action for slander, in saying: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone and are now living together in Pueblo" — an instruction, including in the words which the jury might find were uttered by defendant, "They are gone and are now together in Pueblo," and instructions that there was no evidence to prove any of the words alleged, except the interrogatory, "Had you heard about Logan Baxter and Nora Lemaster running away together?" were contradictory and confusing.

5. LIBEL AND SLANDER (§ 7) — ACTIONABLE WORDS — WORDS SLANDEROUS PER SE.

The spoken words: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo" — were not slanderous per se, because not in and of themselves necessarily carrying a defamatory meaning.

6. LIBEL AND SLANDER (§ 123) — QUESTION FOR JURY — SENSE IN WHICH UNDERSTOOD.

Where the spoken words: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo" — not slanderous per se, were followed by the innuendo "that the said words and sentences so spoken by the said defendant were intended to mean and did mean, and were so understood by all the parties who heard them, to impute and charge the plaintiff with having committed acts of unchastity and fornication and unlawful intimacy with the said Logan Baxter, husband of the plaintiff's sister aforesaid," the jury, in order to make a case of slander, must find that the parties hearing such words understood them to have and to impute the defamatory meaning stated in the innuendo.

7. LIBEL AND SLANDER (§ 105) — EVIDENCE — MEANING OF WORDS.

In an action for slander, evidence as to the sense in which the words were actually understood by the hearer was admissible.

8. LIBEL AND SLANDER (§ 85) — ACTION — PLEADING WORDS RELIED ON.

The words "He (Baxter) left a better-looking woman (his wife) than he run off with (plaintiff)," part of a conversation alleged in a petition for slander, to be relied on as constituting a necessary part of the defamatory charge, must be pleaded.

9. LIBEL AND SLANDER (§ 123) — QUESTION FOR JURY — MEANING OF WORDS.

On evidence, in an action for slander in speaking the words: "Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo" — held that the question whether such words imputed unchastity to plaintiff was for the jury.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by Nora Lemaster against Frank Ellis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. S. Davis, of Cassville, and I. V. McPherson, of Aurora, for appellant. McNatt & McNatt, of Aurora, for respondent.

STURGIS, J.

This is a suit for slander. The petition alleges that the plaintiff is an unmarried woman, and that she and her married sister and her sister's husband, Logan Baxter, lived with her mother in the country in Lawrence county, Mo.; that in the spring of 1912 this plaintiff was absent from home for a time as a traveling saleslady, and that about the same time her sister's husband departed for the state of Colorado; that the defendant also lived in the same neighborhood, and knew that Logan Baxter had gone on a business trip. The petition then proceeds: "Plaintiff further states that the defendant in certain conversations had in the city of Aurora, Mo., on or about the first day of June, 1912, in the presence and hearing of different persons, then and there spoke and published of and concerning the said plaintiff the following false, malicious, and defamatory words, to wit: `Had you heard about Logan Baxter and Nora Lemaster running away together? They (meaning the plaintiff and Logan Baxter) have gone, and are now living together in Pueblo.' That the said defendant at the time said false and malicious words were spoken knew that the plaintiff was an unmarried woman, and that the said Logan Baxter was a married man, and the husband of her said sister, as did all the persons in whose presence and hearing said words were spoken, and that the said words and sentences so spoken by the said defendant were intended to mean and did mean, and were so understood by all the parties who heard them, to impute and charge the plaintiff with having committed acts of unchastity and fornication and unlawful intimacy with the said Logan Baxter, husband of the plaintiff's sister aforesaid." The petition also in a similar way alleges the utterance of other defamatory words, but, as it is conceded and the court so instructed the jury that there was no proof of the speaking of such other words, they need not be further noticed. The petition asks for, and the jury awarded, both compensatory and punitive damages. The answer is a general denial, with an averment that "what the defendant did say in the conversations attempted to be set out was that the plaintiff and the said Logan Baxter had each left home together and come to Aurora; that the said Logan Baxter had taken the Frisco train to Springfield, and the plaintiff had taken the White River railroad to Crane; that the same was said in good faith, without malice on the part of the defendant, who then and there honestly believed the same was true; that in the sense in which the same was uttered the said conversations and statements and words used by the defendant were true." The answer also avers, if plaintiff's reputation has been injured, that it was the result of her own conduct in frequently taking buggy rides with her brother-in-law to church and other places, and being with him frequently, and that his conduct "towards her, and her manner, demeanor, and conduct with and towards him was such that it caused comment and general conversation in the neighborhood unfavorable to the plaintiff."

The defendant challenges the sufficiency of the petition in this case on the ground that the words charged to have been uttered are not slanderous per se, and are so plain and unambiguous as to be incapable of being enlarged by the averments made and by innuendo. In making this contention the defendant seems to have in mind the alleged slanderous words proven to have been uttered, rather than those charged in the petition. It is obvious that the sufficiency of the petition is not to be judged by the sufficiency of the allegations therein which are actually proven. Had the plaintiff proven in this case the speaking of all the words charged in the petition, it would be dangerously near a case of slander per se. Certainly it would have made a case for the jury. It is well settled that, even where the words spoken are not slanderous per se — that is, do not in and of themselves carry poison — they are to be considered by the jury, and their meaning determined in the light of the extrinsic facts and circumstances under which they are spoken. If, in the light of all the facts and circumstances leading up to and surrounding the speaking of the words, they are reasonably capable of imputing and being interpreted as containing the slanderous meaning, the question is for the jury. Ukman v. Daily Record Co., 189 Mo. 378, 394, 88 S. W. 60; McGinnis v. George Knapp & Co., 109 Mo. 131, 139, 18 S. W. 1134; Vanloon v. Vanloon, 159 Mo. App. 255, 265, 140 S. W. 631. The more serious question to be determined here is whether the words proven, when taken in connection with the occasion on which they were spoken and the surrounding facts, are sufficient to take the case to the jury.

This case was tried in a somewhat peculiar way. It is shown that...