Walker v. White

Decision Date02 July 1915
Citation178 S.W. 254,192 Mo.App. 13
PartiesSUSIE WALKER, Respondent, v. MARY E. WHITE et al., Appellants
CourtMissouri Court of Appeals

Appeal from Stoddard Circuit Court.--Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

J. L Fort, Gresham & Moore and Smith & Pearcy for appellants.

The third instruction offered by the plaintiff and given by the court is erroneous, because it authorizes a verdict for the plaintiff, on the mere finding that defendant uttered the words of and concerning the plaintiff, without regard to the fact as to whether they were published, that is, spoken in the presence of and heard and understood by others. There can be no slander without publication of the words. They must be heard and understood by third parties. There must be a publication of and speaking of the words in the presence of some other person, than the plaintiff and defendant, in order to constitute a slander. 25 Cyc. 365-367; Traylor v White, 170 S.W. 412, 413. This instruction attempts to cover the whole case and requires no finding on the part of the jury as to whether the words spoken were heard and understood in their usual sense by those present. The rule is well established in this State that where plaintiff's instruction attempts to cover the whole case and authorizes a verdict for plaintiff on an erroneous theory of the law, an instruction on the part of the defendant touching the same matter will not cure or supply the deficiency in plaintiff's instruction which omits to require the finding of facts essential to sustain the cause of action. Traylor v. White, 170 S.W. 413-414; Wilkes v Railroad, 159 Mo.App. 711, 727; Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260; Ghio v. Schaper Bros., 180 Mo.App. 686; Sheperd v. Transit Co., 189 Mo. 372-373.

George H. Traylor, Mozley & Woody and J. M. Haw for respondent.

A cause will not be reversed on appeal because the existence of certain facts as a basis for a recovery was not presented directly to the jury by instructions, where appellant's own evidence showed such facts. Davidson v. Transit Co., 211 Mo. 320, 357; Lange v. Railroad, 208 Mo. 458, 477; Stillwell v. Patton, 108 Mo. 352; Edwards v. Schreiber, 168 Mo.App. 197, 199; Barnes v. St. Joseph, 151 Mo.App. 523; Campbell v. Hoosier Stove Co., 146 Mo.App. 681; Delaney v. Bowman, 82 Mo.App. 252, 259; Biegler v. Supreme Council A. L. H., 57 Mo.App. 419; Goodwin v. Railroad, 53 Mo.App. 9. The omission in plaintiff's instruction number 3 was supplied by instructions number 3 and number 7 offered by defendant, in that these two instructions, in effect, not only required the jury to find that others beside the plaintiff heard the words but also that such other persons were of sufficient age and understanding to understand that such words imputed unchastity to plaintiff, and did so understand the same to impute unchastity to her. Such omissions in plaintiff's instructions, may be fully supplied by defendants instructions, and the error thereby cured, even where such error, if not cured, would have been one not only of non-direction but of misdirection because purporting to cover the entire case and direct a verdict. Bliesner v. Distilling Co., 174 Mo.App. 139; Jackson v. Telegraph Co., 174 Mo.App. 70; Johnson v. Traction Co., 176 Mo.App. 174; Craig v. United Railways Co., 175 Mo.App. 616; Farmer v. Railroad, 178 Mo.App. 579. The instructions should be considered as a whole and the test, as to whether any instruction is improper or not, is whether or not it is likely that when the instructions are considered as a whole in the light of all the facts and circumstances in the case, the jury was misled by it. If not the judgment should not be reversed because of it. Patton v. Evans, 254 Mo. 293; Honea v. Railroad, 245 Mo. 621; Fugate v. Millar, 109 Mo. 281; Wilson v. Railroad, 66 Mo.App. 388; Wilson v. Railroad, 160 Mo.App. 649; Pendegrass v. Railroad, 179 Mo.App. 517; Meily v. Railroad, 215 Mo. 567; Crader v. Railroad, 181 Mo.App. 526; R. S. 1909, secs. 1850, 2082.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

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

A controversy arose between plaintiff and defendant, who reside in the same neighborhood, over the matter of defendant's taking up some cattle owned by plaintiff's husband. It appears that plaintiff, Mrs. Walker, and Mrs. Traylor were about defendant's lot where the cattle were impounded, when defendant approached in a threatening manner. Defendant, Mrs. Mary E. White, forbade plaintiff's taking the cattle from the lot and, it is said, spoke defamatory words concerning both plaintiff and Mrs. Traylor.

The petition charges that defendant spoke of and concerning plaintiff and one Sadie Traylor, another woman, the following false, malicious and defamatory words, to-wit: "You (meaning plaintiff and said Sadie Traylor) whoring bitches, you had better be at home cleaning up your filthy houses." "You are just alike, both of you are whoring bitches." The evidence introduced on the part of plaintiff tends to prove that these words were spoken and uttered by defendant of and concerning her and Mrs. Traylor, in the presence and hearing of both of them and several other persons--that is to say, in the presence and hearing of Mr. Jones, defendant's father, and of Sarah Walker, plaintiff's daughter, a young girl aged about thirteen years, and defendant's farm hand, Ben Chandler, besides Mrs. Traylor's two children, one of them a little girl about seven years of age and a boy about nine or ten years of age. Defendant stoutly denies that she spoke the defamatory words mentioned and several of the witnesses who were present testified to the same effect. According to the evidence of defendant and her witnesses, she said no more than that plaintiff and Mrs. Traylor "are the dirtiest women in this country; you had better be at home cleaning up your dirty houses--dirty, filthy houses, instead of being up here trying to attend to my business, and tend to your own business." The issue was sharply drawn as to the words spoken and what those who were present understood them to be. The witnesses for plaintiff say the language was such as charged in the petition, while those for defendant assert the contrary.

The principal instruction given on the part of plaintiff touching the matter of the words spoken and their import covers the whole case, in that it treats with plaintiff's theory and authorizes a verdict for her on the finding of the facts therein. The instruction is as follows:

"The court instructs the jury that if you believe from the evidence that the defendant, Mary E. White, on or about the 22nd day of December, 1909, and within two years before the bringing of this action, spoke the words imputed to her to-wit, you are both 'whoring bitches,' meaning this plaintiff and another, and if you believe that by such words defendant intended to impute or charge that plaintiff had been guilty of adultery, and if you further believe from the evidence that said words were false, then you should return your verdict for the plaintiff. You are further...

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