Anderson v. Shockley
| Decision Date | 06 November 1911 |
| Citation | 140 S.W. 755,159 Mo.App. 334 |
| Parties | R. S. ANDERSON, Respondent, v. O. W. SHOCKLEY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Maries Circuit Court.--Hon. Wm. H. Martin, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frank H. Farris, W. D. Johnson, Morton Jourdan and Thomas Bond for appellant.
The new matter set up in the answer was in mitigation of the damages and tended to lessen the same, and the court erred in striking it out. R. S. 1909, sec. 1838; Trimble v Foster, 87 Mo. 49; Minter v. Bradstreet, 174 Mo. 444; Yager v. Bruce, 116 App. 473; 4 Townsend on Slander and Libel, sec. 361, p. 603; Nelson v. Wallace, 48 App. 193.
Beard Crites & Murphy, C. H. Shubert, Manes & Davis and L. B Hutchison for respondent.
This is an action for slander, in which plaintiff recovered judgment in the trial court.
The charge stated in the petition was that plaintiff "is a thief; that he stole a set of harrow teeth from me and I can prove it by John Ormsby." The prayer was for actual damages in the sum of ten thousand dollars. The answer was a general denial. The answer also contained as matter of mitigation substantially the following: That defendant was the owner of a farm and a wooden framed harrow with iron teeth, which harrow was in one of the fields of the farm. That one day when defendant was walking through the field he came in sight of plaintiff engaged in knocking out the harrow teeth, and that when plaintiff discovered defendant was approaching he left the teeth in a pile by the side of the harrow and went away without waiting for defendant to come up, nor did he speak to defendant. That he mentioned these facts to others, but made no charge of larceny, and that he mentioned it only after rumors had arisen in the neighborhood and he had been asked by persons concerning the matter.
The answer continued in statement of mitigation to the effect that plaintiff was a candidate for sheriff, and that without defendant's fault or connivance a rumor became current that plaintiff had stolen his harrow teeth. That plaintiff's fitness for the office was a matter of public concern about which the voters had a right to inquire and investigate, and that he made statements of the foregoing facts in answer to inquiries addressed to him by voters; and that he made them in justice to plaintiff so no injury would be done to him and so the public would know just what the facts were in connection with the incident which had given rise to the rumors; that when the questions were asked him he could not remain silent without in that way sanctioning the correctness of the rumor.
On motion of the plaintiff the court struck out these allegations and the case went to trial on defendant's general denial.
The statute (sec. 1838, R. S. 1909) gives the right to plead mitigating circumstances in an answer which affirms the truth of the matter which the petition charges to be false and slanderous; and so it permits as many defenses as one may have, which are not inconsistent, if they be separately stated. [Secs. 1807, 1808, R. S. 1909]. These defenses need not necessarily be complete; they may be partial. And in the sense of the statute, mitigation would be a partial defense. [Bush v. Prosser, 11 N.Y. 347.]
Therefore, though defendant denied uttering the words charged, he may plead mitigation, since the two are not necessarily inconsistent, and it is apparent, that though the jury should believe he did utter the language attributed to him, they should know the extenuating circumstances. It needs no illustration to bring to mind the many suspicious and unfortunate circumstances which may give a false color or appearance to one's actions and lead the most careful to form wrong conclusions from such appearaces. There is a vast difference in the turpitude of a false charge which appeared to be true and one uttered without any excuse and in actual malice. So it has been held that "a defendant may, with an answer denying the allegations of the complaint, set up any matter in mitigation of damages" [Warner v. Lockerby, 31 Minn. 421, 18 N.W. 145.] In Jones v. Murray, 167 Mo. 25, 47, 66 S.W. 981, there was a general denial and mitigation. Where the defendant does not justify, he may show in mitigation any circumstances which tend to disprove malice but do not tend to prove the truth of the charge. [Mattice v. Wilcox, 147 N.Y. 624, 634, 42 N.E. 270; Newell on Slander and Libel, 882.] It has also been held that, prior to the code, under a plea of the general issue, mitigation may be shown. [Jones v. Townsend, 21 Fla. 431, 441; Williams v. Cawley, 18 Ala. 206.]
But the rule in this state (based on the statute) is that unless exemplary damages are claimed in the petition, none can be allowed. [St. Louis Clothing Co. v. Dry Goods Co., 156 Mo. 393, 407; Berryman v. Cox, 73 Mo.App. 67; Gilfillan v. McCrillis, 84 Mo.App. 576.] None were asked in this case, the prayer being that "plaintiff has been greatly injured in his good name, fame and reputation, to his actual damage in the sum of ten thousand dollars."
It has been more than once decided that actual damages sustained by one who has been defamed, must be allowed to him without diminution by way of mitigation. [Jones v. Murray, 167 Mo. 25, 66 S.W. 981; Callahan v. Ingram, 122 Mo 355, 26 S.W. 1020.] For whatever may have been the real intent or motive of the party uttering the false accusations, malice necessarily attaches to them from their falsity, and he must pay what actual damage he has inflicted upon the party he accused. But when it is sought to go further than that by asking damages not sustained and only permitted as a punishment to the accuser, then mitigation is allowed. Actual or compensatory damages embrace many things somewhat ideal in their nature and incapable of mathematical...
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