Israel v. Israel

• Decision Date: 27 December 1904
• Citation: 109 Mo. App. 366,84 S.W. 453
• Parties: ISRAEL v. ISRAEL.
• Court: Missouri Court of Appeals

84 S.W. 453

109 Mo. App. 366

ISRAEL v. ISRAEL.

St. Louis Court of Appeals. Missouri.

December 27, 1904.

SLANDER — ACTIONABLE WORDS — CHARGING WOMAN WITH BEING UNCHASTE — STATUTE — DAMAGES — DEFENSE — EXCITEMENT AND PROVOCATION — EVIDENCE — SUFFICIENCY.

1. Under Rev. St. 1899, § 2863, providing that it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery, it is actionable per se to falsely and maliciously charge a woman with being a whore.

2. A finding of the jury that defendant in an action for slander in the hearing of a third person falsely charged plaintiff with being a whore entitled her to compensatory damages.

3. In an action for slander it appeared that some hours had elapsed since the defendant had seen his brother, who was confined in an insane asylum, when he arrived at the house of the plaintiff, who was the wife of defendant's insane

brother. He immediately charged plaintiff with mistreatment of his brother, whom he found poorly clothed, and with want of chastity. Held, that the defense that the words were not used in an actionable sense, because of excitement and provocation, was not sustained.

4. The motive and intention of a defendant in a slander suit are to be taken into account only in determining whether to allow exemplary damages.

5. In an action for slander, it is proper to exclude from the jury the question of defendant's intent, motive, and express malice, on the issue of plaintiff's right to compensatory damages.

6. Malice is presumed from the false utterance of actionable words, in so far as plaintiff's right to compensatory damages is concerned; and an instruction that the jury had the right to consider the facts, in determining whether malice existed, and, if they believed that what defendant said was not said maliciously, the verdict should be in his favor, was erroneous.

7. In an action for slander, words are in the first instance to be taken in their natural sense, and the burden is on defendant to show that they were spoken innocently.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Rebecca J. Israel against John Israel. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. W. Lubke and Geo. W. Lubke, Jr., for appellant. E. E. Wood, for respondent.

Statement.

GOODE, J.

Action to recover damages for the alleged utterance to and concerning the plaintiff, in the presence of other persons, of the following false and slanderous words: "You God damned son of a bitch! you turned your husband out as a pauper. You wanted to get rid of him. You didn't take care of him. All that was the matter with you was that you were tired of him. He got too old for you. He couldn't work and wasn't good any more. You are nothing but a damned, dirty whore, and a son of a bitch. Your husband is as sane as I, and you know it. I know what you are." It is averred in the petition that, when the above language was spoken by the defendant, plaintiff's husband was insane, and confined in an insane asylum; and it is averred, too, that in speaking the words the defendant meant, and was understood by plaintiff and the by-standers, to accuse the plaintiff of being unchaste. The answer was a general denial.

Plaintiff and Joseph Israel, brother of the defendant John Israel, were married in 1869, in their early youth, and lived together until 1901, when Joseph became insane from paresis. Prior to that affliction the plaintiff was visited with blindness. This calamity befell her in 1898, and she has been totally blind ever since. It is admitted that enmity existed between her and the defendant's family for several years preceding the insanity of Joseph Israel, and that, for four or five years before the occasion when the slander is said to have been spoken, neither the defendant nor his wife had visited plaintiff's home, or had anything to do with her, except to make a visit at the house to see Joseph Israel while he was growing insane, and, it seems, another visit when plaintiff wished to consult the defendant about Joseph's condition. After Joseph's mind gave way he was placed first in the Baptist Sanitarium in St. Louis, and later, in November, 1901, was transferred to the City Hospital, where he died in March, 1903. There was evidence that the plaintiff visited him frequently, looked after his comfort and welfare as well as she could, and was in no way guilty of casting him off or neglecting him. On January 3, 1902, the defendant, his wife, and Mrs. Frank Israel, the wife of a cousin of the defendant, called at the hospital to see Joseph Israel. The defendant thought his insane brother was shabbily and insufficiently clothed, and in a disgraceful and suffering state from lack of proper clothing. After leaving the hospital the defendant and his companions repaired to the home of Frank Israel, where they ate lunch, and defendant and his wife then went to the plaintiff's home, four or five blocks away. On reaching the house the defendant knocked on the door, and plaintiff asked who was there. She soon recognized the defendant's voice, and opened the door; asking at the same instant who was with the defendant; the latter responding that his wife was with him. Those remarks passed as the defendant and his wife entered the house, and what followed immediately is thus related by the plaintiff: The defendant asked if she knew where he had been, and said he had been to see Joe, the insane brother and husband. Plaintiff asked how defendant found Joe, whereupon the defendant said: "How did I find him? God damn you! like a pauper. He was a disgrace and a shame for any person to see. He had no clothes on. He had no shoes, no socks, no underwear. His pants was so filthy and so greasy that you could take a knife and scrape the grease and dirt off them. His coat and vest was an old, cast-off coat and vest three times too big for him, an old, washed-out shirt, and next to that he had nothing but an old rag of a handkerchief. He was the worst-dressed man down there, God damn you! you sent him out like a pauper. I know what you are. You have never been any good. I know you. You have been nothing but a damned whore. He is as sane as I am. All is the matter with you, you damned, dirty son of a bitch, you damned bastard, you damned whore, he got too old for you. He was no good. You turned him out on the street." According to the plaintiff and a servant, Albertine Miller, the defendant accompanied his foul language with violent gestures; pounding the table and shaking his fist in plaintiff's face. Other persons living in the neighborhood heard profane and violent language, but none of them, except the plaintiff and Miss Miller, caught the epithet impugning plaintiff's chastity. The evidence tends to prove that the shock plaintiff received by the violence of the defendant's conduct, and the slanderous charges he uttered, laid her up with nervous prostration and sleeplessness; her illness continuing until the trial, with small hope of recovery. Miss Miller said the defendant was angry while speaking to the plaintiff, and that she (the witness) did not believe his charge that the plaintiff was unchaste, because she (the witness) knew the charge was false. The defendant flatly denied speaking any words against plaintiff's chastity, but admitted upbraiding her for not sending her husband enough clothing. Defendant denied calling plaintiff a whore, or any other epithet; denied telling her she wanted to get rid of her husband, or did not take care of him, or was tired of him, or that he was too old for her, or could not work, and was not good any more. He acknowledged using profane words, but not regarding the plaintiff, and swore the language he used was substantially as follows: "Now, nobody cares a damn for him. He can't do you any more favors, the poor devil! When he was here he done more favors than any one in the neighborhood. Where is his clothes, anyhow? For Christ's sake, why don't you have them out there? He don't cost you anything out there — as little as you have got to do, to see he has his clothes out there. I know he has got plenty of them. It is no good to you."

The instructions allowed a verdict for the plaintiff only on a finding that the defendant spoke the words averred in the petition, which charged the plaintiff with being unchaste, and told the jury that the accusations of neglecting her husband, desiring to get rid of him, or casting him off, would not entitle the plaintiff to a verdict. This instruction was requested by the defendant, and refused: "The jury are further instructed by the court that, to entitle plaintiff to recover in this case, it is necessary that the jury should believe and find from the evidence, and all the circumstances shown by the evidence, that the defendant, by the language spoken by him in the interview between him and the plaintiff on January 3, 1902, meant to accuse the plaintiff with being unchaste, and that said language was so understood by the persons who heard the same. If the jury do not so find, then they will render a verdict for the defendant. And if the jury, from the evidence, and circumstances in evidence, believe that the words spoken by defendant were uttered by him in anger, as terms of abuse and reproach to the plaintiff, and were not intended as the truth, and were understood by the hearers as being mere terms of abuse uttered in anger, and not intended to charge the plaintiff with unchastity, then the jury should find for the defendant." On the question of malice, the court instructed that the words "you are a whore" were slanderous in themselves, and the law implied malice from them, rendering it unnecessary for the plaintiff to prove express malice if those words were spoken of her in the presence of others; also that malice does not consist alone in personal spite or ill will, but exists, in law, whenever a wrongful act is intentionally...