Anderson v. Shockley

• Decision Date: 06 January 1916
• Citation: 181 S.W. 1151,266 Mo. 543
• Parties: R. S. ANDERSON, Appellant, v. O. W. SHOCKLEY
• Court: Missouri Supreme Court

181 S.W. 1151

266 Mo. 543

R. S. ANDERSON, Appellant, v. O. W. SHOCKLEY

Supreme Court of Missouri, Second Division

January 6, 1916

Appeal from Maries Circuit Court. -- Hon. John M. Williams, Judge.

Reversed and remanded.

C. C Bland, J. J. Crites and L. V. Hutchison for appellant.

(1) The question whether or not the defendant was actuated by malice in uttering the defamatory words alleged in the petition was for the jury, and the court erred in refusing instruction number 8, asked by the plaintiff, authorizing the jury to take into consideration the evidence showing that defendant had on divers occasions prior to July, 1908, uttered defamatory words similar to those charged in the petition. 18 Am. & Eng. Ency. Law, p. 1012; Anderson v. Shockley, 159 Mo.App. 334; Buckley v. Knapp, 48 Mo. 152; Callahan v. Ingram, 122 Mo. 355; Harrell v Plimpton, 166 Mass. 585; Collins v. State, 39 Tex. Crim. 30; Casey v. Hulgan, 118 Ind. 590; Beneway v. Thorp, 77 Mich. 181. (2) No person was named in the petition to whom, or in whose presence the defendant uttered the slanderous words charged in the petition, and it was competent for plaintiff to prove that he uttered the defamatory words in the presence of one or more persons, although the utterances may have been on different occasions, provided they were made within the time and at the place alleged, it being a question of fact for the jury as to whether or not there was a publication. 18 Am. & Eng. Ency. Law, p. 1013. And it was error to refuse to submit this question to the jury on Vaughn's testimony, as was done by the court in refusing instruction number 9 asked by the plaintiff. Atwinger v. Fellner, 46 Mo. 276; Bradshaw v. Perdue, 12 Ga. 510; Downs v Howley, 112 Mass. 237; Perry v. Potter, 124 Mass. 338; Sec. 1837, R. S. 1909; Johnson v. Bush, 171 S.W. (Mo. App.) 636. (3) By instruction number 4 given for the defendant the court narrowed the scope of the petition and testimony as to time and place of the utterances of the defamatory words, confined the plaintiff to a definite and particular date and to a located and specific place not alleged in the petition, and in effect withdrew the evidence of James F. Vaughan from the consideration of the jury, by whom plaintiff proved all of the slanderous words alleged in the petition, within the time and at the place alleged. This instruction in thus limiting both the place and the evidence is fatally defective. Pottery Co. v. Folckemer, 131 Mo.App. 105; Eckard v. Transit Co., 190 Mo. 593; Shanahan v. Transit Co., 109 Mo.App. 228; Imboden v. Transit Co., 111 Mo.App. 220; Phelan v. Paving Co., 115 Mo.App. 435; Boyce v. Railroad, 120 Mo.App. 175; Rose v. Spies, 44 Mo. 20; Meyer v. Railroad, 45 Mo. 137. The allegations that the slanderous words were uttered on about July 30th, at the county of Pulaski, did not require the plaintiff to prove their utterance on that particular date, nor confine him to proof of any special or particular spot or time in Pulaski County. Black's Law Dict., p. 849; Brown v. Riddle, 3 Ala.App. 292; Keer v. State, 105 S.W. 54.

Frank H. Farris and W. D. Johnson for respondent.

(1) Appellant had a right, no doubt, to have the jury told that if they found for him, in assessing the damages sustained, they could take into consideration the publicity given thereto, by the repetition thereof of respondent, or by his speaking of words of similar import. This appellant did not ask, and having taken no action and made no request for such a declaration, he cannot now complain. Estes v. Antrobus, 1 Mo. 121; Weaver v. Hendricks, 30 Mo. 506; Pennington v. Meeks, 46 Mo. 220; Barbee v. Hereford, 48 Mo. 325; Buckley v. Knapp, 48 Mo. 161; Hammon v. Douglas, 50 Mo. 442; Rammell v. Otis, 60 Mo. 366; Carpenter v. Hamilton, 185 Mo. 615; Isreal v. Isreal, 109 Mo.App. 373. (2) Testimony of other similar slanders at other times and places, and in the presence of other parties, could not be permitted as the basis of his cause of action, because it was of a different time and different place and of different words than that set out in his petition; and because such proof of such other slanders was only admissible to show the degree of publicity given to the slander, and to fix the probable damage which he may have sustained. Having elected and chosen the statement upon which he would base his action, and having proceeded upon it until the trial was complete, he could not be permitted to shift his action to another cause, entirely different from that which he had pleaded. 25 Cyc. 436; Walter v. Hoeffner, 51 Mo.App. 49; Pennington v. Meeks, 46 Mo. 217; Christal v. Craig, 80 Mo. 370; Lewis v. McDaniel, 82 Mo. 586; Vanloon v. Vanloon, 159 Mo.App. 269; Conran v. Fenn, 159 Mo.App. 681; Flowers v. Smith, 214 Mo. 129.

OPINION

FARIS, P. J.

Plaintiff sued defendant in Pulaski County for slander. The venue was changed on the application of defendant to Maries County, where the case was tried, a verdict rendered for defendant and plaintiff appealed. The sum claimed as damages was ten thousand dollars; hence our jurisdiction. We may say in passing that this case has been tried before, wherein defendant mulcted in damages in the sum of $ 1250, appealed and obtained a reversal and a new trial. [Anderson v. Shockley, 159 Mo.App. 334, 140 S.W. 755.] To the latter case reference is made for such of the facts as we may not deem it necessary to set out herein.

Since upon the instant appeal no points are made except as to the action of the court in giving three instructions, which we set out in our opinion, we need not here go very extensively into the facts. The petition upon which the trial below was had, contains but one count, the charging part of which and which alone is pertinent here, runs thus: "Plaintiff for his second amended petition herein states that the defendant on or about the 30th day of July, A. D. 1908, at the county of Pulaski, in the State of Missouri, wilfully, wantonly and maliciously spoke of and concerning the plaintiff, R. S. Anderson, certain false, defamatory and slanderous words, to-wit: 'R. S. Anderson (meaning the above-named plaintiff) is a thief; that he (meaning plaintiff) stole a set of harrow teeth from me and I can prove it by John Ormsby.'" Thereafter followed prayer for judgment in the ordinary form.

The evidence on the part of plaintiff tended to prove that about the latter part of July, 1908, at the railroad depot in the town of Crocker, in Pulaski County, defendant spoke to plaintiff in the presence of one Albert Manes sufficient of the words complained of to form substantially the statement set out in the petition. Testimony was also offered on the part of plaintiff that defendant at divers other times and places, particularly to one James F. Vaughan and to a certain J. M. Carmack, made statements of similar import, in which he charged plaintiff with having stolen his harrow teeth. The first instruction asked by plaintiff and given by the court made specific reference to the alleged defamatory words spoken in the presence of the witness Albert Manes.

The answer of defendant was, among other things not pertinent, a specific denial of the fact that he spoke the words charged. The proof of defendant tended to show that he had not spoken to plaintiff in the presence of witness Albert Manes the defamatory words alleged and shown by the testimony of said Manes, or in the presence of anyone else. The defense made a very serious attack upon the general reputation of the witness Albert Manes for truth and veracity. In addition, the defense sought to impeach Manes by showing by other witnesses (who said they were present at the railroad station in Crocker at the time defendant is said by this witness to have uttered the words charged), that no such conversation was in fact had between defendant and plaintiff.

The three instructions complained of, the giving of one of which for defendant and the refusal of two of which for plaintiff constitute the only assignments of error, will be found set out in the opinion, together with such other facts as we may find to be necessary to make clear the discussion.

I. But three points are made by appellant, each of which as stated, has to do with instructions, either given or refused. At the request of defendant the learned trial court gave this instruction, to-wit:

"No. 4. Unless you find from the evidence that the defendant spoke of and concerning plaintiff at Crocker, Missouri, on or about the 30th day of July, 1908, in the presence and hearing of witness Manes the alleged defamatory words stated in plaintiff's petition, you cannot find the issues for plaintiff, even though you may believe from the evidence that defendant spoke such words to other parties at different times and places."

Appellant contends that in this the learned judge nisi erred. We disallow this point and hold the instruction correct in principle. If it was adventitiously wrong, the fact was due to another error, which we hereafter discuss. It was the duty of plaintiff to confine himself to one publication as a basis of recovery; or else to have charged each separate and distinct publication upon which he sought recovery in a separate count. [Christal v. Craig, 80 Mo. 367.]

II. Appellant contends that the court erred in refusing to give at his request instructions numbered eight and nine, which are as follows:

"No 8. The court instructs the jury that if you believe and find from the evidence that the defendant in the presence and hearing of J. M. Carmack, or others, spoke of and concerning plaintiff slanderous and defamatory words similar and of like import to those charged in the petition, they may consider such evidence as tending to prove express malice on the part of the defendant.

"No 9. The court...