Ballew v. Thompson

• Decision Date: 27 February 1924
• Docket Number: No. 3478.,3478.
• Citation: 259 S.W. 856
• Parties: BALLEW v. THOMPSON.
• Court: Missouri Court of Appeals

259 S.W. 856

BALLEW v. THOMPSON.

No. 3478.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Action by Helen Ballew against Leda S. Thompson. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

J. N. Burroughs and M. E. Morrow, both of West Plains, for appellant.

Green, Green & Green and B. L. Rinehart, all of West Plains, for respondent.

COX, P. J.

Action for damages for slander. The petition was in two counts, and asked for both actual and punitive damages in each count. The verdict and judgment was for plaintiff on both counts for both actual and punitive damages. Actual damages on each count was assessed at $1,500, and punitive damages on each count at $500. The trial court reduced actual damages to $500 on each count, and then rendered judgment on. each count for $500 actual and $500 punitive damages. Defendant appealed.

The alleged slander in each count was a charge of larceny against plaintiff by defendant. The answer did not contain a general denial, nor did it specifically deny the use of the language charged in the petition, but did set out in substance what she alleged she had, in fact, said to plaintiff's witnesses. The answer also pleaded a qualified privilege, facts in mitigation of damages, and then charged that plaintiff had stolen $40 from her.

Appellant claims that there was a failure of proof because, as claimed, the plaintiff failed to prove that defendant used the language which the plaintiff charges. The respondent answers this by contending that, since the answer of defendant did not contain a general denial nor a specific denial of the use of the language charged, its use was admitted. The case, however, was tried upon the theory that the burden was on plaintiff to prove that defendant spoke the words charged. Plaintiff took the affirmative, and, in the conduct of the trial and in the instructions to the jury asked by her and given by the court, she assumed the burden of proof, and we are disposed to follow the same course here which was followed by the plaintiff at the trial. "

In the first count of the petition the charge is made that defendant spoke of and concerning plaintiff the following words: "There is the woman that stole my money." The evidence to sustain that charge is found in the testimony of Mrs. Harlan, and the conversation between her and defendant is related by her as follows:

"I had a conversation with Mrs. Thompson at the Methodist church either in November or December of last year. We were sitting in the choir and church had not begun yet. Mrs. Ballew came in at the door. Shortly afterward Mrs. Thompson made the remark to me that she had a burglary in her neighborhood. I thought she meant a man and began to question her. She said, `It was not a man but a woman, in daytime.' I said, `Who?' and she said, `My neighbor.' I questioned her and she said, `Well, she has been your neighbor, haven't you had any experience with her?', I asked her if she had reference to the lady who had just come in the door and she nodded her bead or said `Yes,' I don't remember which. I said, `What did she take?' and she said, `She took $40 in money, but replaced all except $10.' I said, `How was it replaced?' She said, `About as it was taken. * * *' She said she intended to tell it because she did not want her friends imposed on as she had been, and that she did not know whether she had enough evidence for twelve men to convict her, but she felt that she got it. That was about the extent of our conversation."

The settled rule in this state is that to sustain a charge of slander the same words alleged to have been spoken or enough of the same words to constitute the alleged slander must be proven as alleged. Proof that the party used other words of similar import which may have conveyed the same meaning will not suffice. Noeninger v. Vogt, 88 Mo. 589, 592; Lemaster v. Ellis, 173 Mo. App. 332, 339, 158 S. W. 904; State v. Westbrook, 186 Mo. App. 421, 425, 426, 171 S. W. 616, and cases there cited.

The language charged in the first count to have been spoken by defendant concerning plaintiff is as follows: "There is the woman what stole my money." We have set out above all the evidence tending to show what language was used by defendant, and it will be readily seen that the language charged to have been used was not proven, and, under the authorities above cited, and many others that might be cited, we must hold that, as to the first count of the petition, there was a total failure of proof.

In the second count in the petition, the use of the following language is charged, to wit:

"I have a chain of evidence against Mrs. Ballew that will send her to the penitentiary. It is a penitentiary offense to steal $40, and bringing back $30 does not lessen the crime any."

The language proven was used in a conversation with Mrs. Ledbetter as testified to by her as follows:

"I had a conversation with Mrs. Thompson about the first of...