Traylor v. White

• Decision Date: 03 November 1914
• Docket Number: No. 13314.,13314.
• Citation: 170 S.W. 412,185 Mo. App. 325
• Parties: TRAYLOR v. WHITE.
• Court: Missouri Court of Appeals

170 S.W. 412

185 Mo. A. 325

TRAYLOR v. WHITE.

No. 13314.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

1. LIBEL AND SLANDER (§ 112) — EVIDENCE — SUFFICIENCY.

In an action for damages for slander, evidence held sufficient to support a finding that defendant uttered the slanderous words.

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

Where defendant called plaintiff a whoring bitch, such words were slanderous per se; plaintiff being a woman, and the epithet implying want of chastity.

3. LIBEL AND SLANDER (§ 101) — MALICE — WORDS ACTIONABLE PER SE.

Where the words complained of are slanderous per se, malice is implied, and it is unnecessary to prove express malice; the burden being on defendant to prove want of malice in mitigation.

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

Without publication, there can be no slander; statements made to the party himself and not in the hearing of others not being slanderous.

5. TRIAL (§ 296) — INSTRUCTIONS — CURE OF INSTRUCTIONS BY OTHERS.

While the instructions should be read and considered together, the error in a slander suit in plaintiff's instruction, covering the whole case, which authorized a judgment for plaintiff without proof of publication, is not cured by an instruction given on behalf of defendant, which required the slanderous charge to have been understood by others, for, where plaintiff's instruction purports to cover the whole case, it cannot be cured by one on the part of defendant.

Appeal from Circuit Court, Mississippi County; Charles B. Farris, Judge.

Action by Sadie Traylor against Mary E. White. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gresham & Moore, of Sikeston, J. L. Fort, of Bloomfield, and Smith & Pearcy, of St. Louis, for appellant. George H. Traylor, of New Madrid, and J. M. Haw, of Charleston, for respondent.

NORTONI, J.

This is a suit for damages on account of an alleged slander. Plaintiff recovered, and defendant prosecutes the appeal.

It appears that plaintiff and defendant resided near each other in Mississippi county, and the families of both were engaged in farming. Plaintiff and her husband resided on and cultivated a portion of defendant's farm, and so, too, did John Walker and his wife. Several head of Walker's cattle trespassed upon defendant's wheat field, and defendant put them in a lot. About this time Mrs. Susie Walker came up to look after the cattle and solicit their release. While Mrs. Walker was at defendant's lot on this mission, plaintiff, Mrs. Sadie Traylor, approached with her two children and entered into the conversation by advising Mrs. Walker to enter the lot and turn the cattle out. Thereupon, it is said, defendant, Mrs. Mary E. White, came out of the house in a threatening manner and used offensive language to both plaintiff and Mrs. Walker. The evidence tends to prove Mrs. White had a pistol and made dire threats toward both plaintiff and Mrs. Walker. Among other things, the petition avers that defendant, Mrs. White, spoke of and concerning plaintiff and Susie Walker the following false, malicious, and defamatory words, to wit:

"You (meaning plaintiff and the said Susie Walker) whoring bitches, you had better be at home cleaning up your filthy houses." "You are just alike, both of you whoring bitches."

The evidence for plaintiff tends to prove that these words were spoken and uttered by defendant of and concerning plaintiff and Mrs. Walker in the presence and hearing of several persons; that is to say, in the presence and hearing of a Mr. Jones, defendant's father, and Sarah Walker, a young girl about 13 years of age, and defendant's hired hand, Chandler, besides plaintiff's two children, one of them a little girl, Carmen, aged about 7 years, and a boy aged about 9 or 10 years. Defendant and another witness for her, who says he was present at the time, both stoutly deny that any such words were spoken by defendant of and concerning plaintiff or any one else. It is admitted, however, that there was a controversy between the parties and some sharp words ensued, but the speaking of the defamatory and slanderous words is denied throughout. The evidence for plaintiff is abundant, however, to the effect that defendant spoke of and concerning her and Mrs. Walker the precise words charged in the petition. The jury found the issue for plaintiff as though defendant uttered the slander, and awarded her a recovery of both actual and punitive damages. The judgment is for $2,500 actual and $1,000 punitive damages.

There are numerous errors assigned, but some of them find no support whatever in the record, while others are devoid of merit and will therefore not be noticed.

The words spoken of and concerning plaintiff (that is, that she was a "whoring bitch") are slanderous per se and carry with them an imputation of fornication and unchastity....