Birch v. Benton

• Decision Date: 31 January 1858
• Citation: 26 Mo. 153
• Parties: BIRCH, Defendant in Error, v. BENTON, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 153

BIRCH, Defendant in Error,

v.BENTON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Slanderous words charging a man with having whipped his wife are not actionable per se; special damage must be alleged and proved.

2. Words imputing an indictable offence for which corporal punishment may be inflicted as the immediate punishment, and not as the consequence of a failure to satisfy a pecuniary penalty, are actionable in themselves.

3. Under the revised code of 1845, “to publish maliciously and falsely, in any manner whatever, that any person has been guilty of fornication and adultery,” was actionable.

4. The office of an innuendo is to explain the meaning of the defendant in using the slanderous words; and this meaning as averred by an innuendo is a question of fact to be decided by the jury.

5. The question whether there is a fatal variance between the allegations of a petition and the proof is a question for the court.

6. In an action of slander the slanderous words must be proved as charged; proof of equivalent words is not sufficient.

Error to Henry Circuit Court.

Ryland and Johnson, for plaintiff in error.

I. To say of a man that he whipped his wife is not actionable. The first and third counts contain words making this charge alone. Defendant's fourth instruction should have been given.

II. The words as charged must be proved, or a sufficient number of them to contain the charge must be proved. It is not sufficient to prove equivalent words. The court ought to have excluded Burns' deposition. His statement does not contain the words as charged in the fourth count. (Dryden v. Berry, 7 Mo. 324.) It was the duty of the court to decide upon the subject of the variance between the words offered in proof and the words charged. (Ib.)

III. The innuendo is no part of the words charged, and should not have been given to the jury as such a part of the words charged.

IV. The seventh instruction for defendant should have been given. There is no pretence that Burns proved the words as laid in the fourth count. Where words are charged to have been spoken which are not actionable, but are coupled with other words that are actionable, it is not sufficient to prove the words not actionable. It is manifest that the court below supposed it to be actionable to say of a man that he had whipped his wife.

V. The court ought to have given the twelfth instruction asked for by defendant. There was no mayhem proved; not one word of evidence on this charge. The words which by innuendo were alleged to impute adultery with the negro woman were not proved. A similar charge was proved, but not in the words as laid in the petition, nor in the substance of the words.

Sheley, for defendant in error.

I. The court committed no error in refusing to exclude from the jury the evidence of Burns, he having proved the substance of the words as laid in the petition. (Herme v. Arrowsmith, 1 Bibb, 166; 2 Gilm. 720; Cooper v. Marlow, 3 Mo. 134; Estes v. Autrolus, 1 Mo. 140; David v. Winters, 20 Mo. 361; Hudson v. Garner, 22 Mo. 423.)

II. The court committed no error in permitting plaintiff to read the deposition of Phillips; it was properly rebutting testimony to Gov. King's deposition, and even if properly evidence in chief, yet it was purely within the discretion of the court, and this court will not revise that discretion. (Rucker v. Eddings, 7 Mo. 115.)

III. The instructions given by the court upon its own motion embraced all the law of the case, and the instructions asked by defendant were very properly refused. (Masten v. Fanning, 19 Mo. 302.)

IV. The plaintiff had a right to read a part of the deposition of Terrill, and the court committed no error in permitting him to do so. The defendant had no right to complain, as he afterwards read the remaining portion of the deposition to the jury. (Hill v. Haile et al. 13 Mo. 612.)

V. The deposition of McKee was properly read to the jury. It is competent to prove the repetition of the words after suit is brought. (Williams v. Harrison, 3 Mo. 240.)

RICHARDSON, Judge, delivered the opinion of the court.

The amended petition on which the case was tried is as follows: “Plaintiff states that on the 16th day of July, 1849, at Clay county, in the state of Missouri, the defendant (who is not a resident of said state) spoke the following false and slanderous words concerning the plaintiff: ‘I wonder when the damned scoundrel whipped his wife last?’ meaning thereby to charge, and being understood by those who heard him to charge, that plaintiff had been and was guilty of the dishonoring crime of an assault and battery on his wife. Plaintiff further states that on the fourth day of August, 1849, at the county of Platte, in the state of Missouri, the defendant (who is not a resident of said state) spoke in the presence and hearing of divers persons the following false and slanderous words concerning the plaintiff--that is to say, “He has whipped his wife; he has whipped her again since he denied it at Liberty; he knocked out three of her teeth;' meaning thereby to charge that the plaintiff had been and was guilty of the crime of mayhem. And at the time and place aforesaid, and in the hearing of the persons aforesaid, the defendant spoke of and concerning the plaintiff these other false and slanderous words-- that is to say, ‘She had to fly to a neighbor's house, where she exhibited the blood or marks of his violence. He whipped his wife until the blood ran down to her heels;’ meaning thereby to charge plaintiff with the crime of assault and battery on his wife. And at the time and place aforesaid, in the hearing of divers persons, the defendant (who is not a resident of the state of Missouri) spoke the following false and slanderous words concerning the plaintiff--that is to say, ‘The Platte City clique have brought Jim Birch--that cur dog--yes, that son of a cur--yes, a damned sheep-killing dog--to speak against me; since I was at Liberty he has whipped his wife, and she had went to a neighbor's house with her teeth knocked out and with blood on her; all for keeping his own negro wench;’ meaning thereby to charge, and being understood by those persons who heard him to charge, plaintiff with the scandalous crime of adultery with a negro woman; by which plaintiff says he is damaged,” &c.

The only evidence offered by the plaintiff for the purpose of proving the speaking of the words, was the testimony of James N. Burns and John Terrill. The material part of Mr. Burns' statement is as follows: “I was in Platte City on the day Col. Benton made his speech, which was, I think, in the summer of 1849; saw Col. Benton after his address at Gaines' Hotel; heard him talking in the porch of the hotel about an hour that day; he was explaining or talking to the crowd about the outrage that he said had been committed there that day toward himself; and in substance used about this language: ‘that the Platte City clique had caused him to be insulted at his stand in a private grove; had sent for a dog, a d--d sheep-killing dog or cur, Jim Birch, to answer his speech--a man who had whipped his wife and caused her to fly to a neighbor's house with the marks of his violence upon her; that his wife was a decent and intelligent lady, and that the cause of the difficulty was on account of Birch preferring to sleep with a d--d negro wench to his own wife.’ Such is about my impression of what conversation I heard,” &c. The substance of Mr. Terrill's deposition is as follows: “I was in Liberty on the day that Col. Birch and T. H. Benton spoke, in the summer of 1849. On the day they spoke in Liberty, I was sitting opposite to Col. Benton on the pavement in front of Green's tavern; there was a large crowd present listening to Col. Benton's conversation; he very bitterly denounced Col. Birch as the man who had whipped his wife for the accommodation of a negro woman; and said that he would not speak in the court-house with him, or notice him in any manner,” &c.

It will be observed that the venue of the conversation in which the plaintiff was charged with “keeping his own negro wench” was laid at Platte City, and only one of the witnesses testifies to any thing that was said at that place, and he does not undertake to give the defendant's language, but only his impression of the substance of it.

The petition contains four sets of words, and though the court subdivided it into four counts, it contains only one; but this subdivision, though technically incorrect, was a convenient mode of distinguishing the sets of words claimed to be actionable. The first and third are that the plaintiff had whipped his wife, and imputed the offence of assault and battery; the second that the plaintiff was guilty of mayhem; and the fourth that the plaintiff kept his own negro woman, which imputed the offence of adultery. Among other instructions the defendant asked this: “4. That the words in plaintiff's petition charging defendant with having said that plaintiff whipped his wife are not words actionable under the law; and, although they may believe from the evidence that the defendant spoke such words, the speaking of the words did not authorize the jury to find for plaintiff.” The court refused to give this instruction, and gave the following: “1. The court, on the part of the plaintiff, instructs the jury, the slanderous words alleged to have been spoken by the defendant of the plaintiff, as alleged in the first and third counts, are admitted by the defendant to have been spoken, and the defendant has not by his answer justified or set up any...