Brown v. Wintsch

• Decision Date: 19 December 1904
• Parties: MATTIE H. BROWN, Respondent, v. A. A. WINTSCH et vir, Appellants
• Court: Kansas Court of Appeals

84 S.W. 196

110 Mo.App. 264

MATTIE H. BROWN, Respondent, v. A. A. WINTSCH et vir, Appellants

Court of Appeals of Missouri, Kansas City

December 19, 1904

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Jackson Circuit Court.--Hon. Shannon C. Douglass, Judge.

AFFIRMED.

Affirmed.

B Wells and L. H. Watters for appellants.

(1) Plaintiff over defendant's objections was permitted to prove by Mrs. Duke how plaintiff appeared when she told her that Mrs. Wintsch had been talking about her and trying to run her character down. (2) Mrs. Griffin, over defendant's objections, was allowed to testify that she understood Mrs. Wintsch to mean that they were living together in adultery and fornication. There was nothing ambiguous or uncertain about the words spoken and such testimony should have been excluded. Callahan v Ingram, 122 Mo. 355; Lewis v. Humphreys, 64 Mo.App. 471; Caruth v. Richardson, 96 Mo. 186; State v. Bonner, 85 Mo.App. 462. (3) The court erred in giving plaintiff's instructions numbered 1, 2, 3, 4, 5, 6 and 7. (a) Three separate and distinct causes of action were stated in the same count and instructions numbered 1, 2 and 3 authorized a recovery on each. While several defamatory statements may be stated in a single count, there can be a recovery as to but one. Birch v. Benton, 26 Mo. 153; Pennington v. Meeks, 46 Mo. 217; Burcher v. Scully, 107 Ind. 246. (b) The petition alleges that plaintiff, by reason of all of said false charges and slanderous words, was greatly injured, etc., and has been damaged in the sum of $ 5,000. These instructions allowed a recovery for each and all the slanderous words charged. (4) The first instruction did not submit to the jury the question whether plaintiff was an unmarried woman or whether the innuendo was sustained. Callahan v. Ingram, 122 Mo. 367; Starkie on S. & L. sec. 466; Newell on Def. S. & L., sec. 388; Townsend on Slander and Libel, sec. 338. (5) The second instruction failed to submit the question whether plaintiff was an unmarried woman. The proof showed that she was and could not have been guilty of adultery. Christal v. Craig, 80 Mo. 373; Hood v. State, 56 Ind. 263; 1 Bouvier, Dic., title "Adultery;" Abbott's Law Dic., title "Adultery;" Am. and Eng. Ency. Law, "Adultery." (6) The third instruction is subject to the same criticism as the first. (7) These instructions erroneously authorized the jury to assume that the defamatory statements were false. Callahan v. Ingram, 122 Mo. 366.

Ward & Hadley, Hunt C. Moore and E. A. Neel for respondent.

(1) The witness, Mrs. Duke, was properly permitted to testify as to plaintiff's appearance when she was told that defendant, Mrs. Wintsch, had been talking about her and trying to run her character down. Madden v. Railroad, 50 Mo.App. 673; Muff v. Railroad, 22 Mo.App. 584; State v. Buchler, 103 Mo. 206; Crookshanks v. Adams, 61 Mo.App. 585; Eyerman v. Sheehan, 52 Mo. 223; Boot & Shoe Co. v. Bain, 46 Mo.App. 589; Cooke v. Railroad, 57 Mo.App. 479; Greenwell v. Crowe, 73 Mo. 640. (2) There was no error committed in omitting from the first and third instructions the question whether the innuendos pleaded from the Rose and Griffin conversations were sustained, nor was there error committed in permitting the witness Griffin to testify as to what she understood the words to mean. Where words are unambiguous and libelous per se the innuendo and testimony thereunder will be regarded as surplusage and be rejected. Callahan v. Ingram, 122 Mo. 368; Newell on Defamation, Slander and Libel, p. 628, sec. 38; Odgers on Libel and Slander, 101; Townsend on slander and Libel, p. 579, sec. 344; Lewis v. Humphries, 64 Mo.App. 472; Michael v. Matheis, 77 Mo.App. 562. (3) The instructions authorized and warranted but a single recovery. Pennington v. Meeks, 46 Mo. 219; Lewis v. McDaniel, 82 Mo. 586. (4) If there was error in admitting from the instructions the issues of Mrs. Brown being an unmarried woman, it was harmless and is not such as to warrant a reversal. R. S. 1899, sec. 659; Fitzgerald v. Barker, 96 Mo. 665; Homuth v. Railroad, 129 Mo. 629; Fox v. Windes, 127 Mo. 502; Macfarland v. Heim, 127 Mo. 327; Comfort v. Ballingal, 134 Mo. 281; Com. Co. v. Block, 130 Mo. 668; Light Co. v. Lamar, 140 Mo. 145. (5) There was no necessity for an innuendo after the words, "that Mrs. Brown was not a decent woman, as she had lived with her husband, Mr. Brown, in adultery, before they were married." R. S. 1899, sec. 2863; Hudson v. Garner, 22 Mo. 423; Stieber v. Wensel, 19 Mo. 513; Callahan v. Ingram, 122 Mo. 368. (6) The presumption or assumption of falsity of the defamatory statements was correct under the pleadings. Hall v. Jennings, 87 Mo.App. 627; Waddington v. Waddington, 21 Mo.App. 609; State v. Forrester, 63 Mo.App. 530; Hallowell v. Gentle, 82 Ind. 554a; Stowell v. Beagle, 79 Ill. 525; Broughton v. McGrew, 39 F. 672; Hagan v. Hendry, 18 Md. 177; Conroy v. Pittsburg Times, 139 Pa. St. 334; Thomas v. Bowen, 29 Ore. 263; McIntyre v. Bransford (Ky.), 17 S.W. 359; Byrket v. Monahan, 41 Am. Dec. 213.

ELLISON, J. Smith, P. J., concurs. BROADDUS, J., dissenting.

OPINION

SEPARATE OPINION.

ELLISON J.

The statute itself (section 2863, Revised Statutes 1899) makes it slander per se to falsely charge a person with being guilty of adultery or fornication. [Stieber v. Wensel, 19 Mo. 513.] Without the statute, the law both in England and many of the States, seemed to be that a charge of unchastity (where it was not made a crime) was not actionable without proof of special damage. [Folkard's Starkie on Slander, 128, 129; Odgers on Slander, 84-87.]

This was always considered unsatisfactory and unjust, and so to settle the matter our Legislature declared flatly, that to charge a person with either of those immoral acts was slander per se, damages following, as of course, without proof of special damage. The Legislature probably had in mind only the idea of making certain the law in these instances where justice so clearly demanded it. The Legislature had no further intention than that. By use of the words "any person has been guilty of adultery or fornication," it was not intended to include any person who could not commit the sexual act which is called either adultery or fornication. As, for instance, a nursing babe would be included in the phrase "any person," and yet, the statute did not include such. To say of a four-year-old boy that "he is only four years old, but he has committed adultery," would not be slander, because a boy of that age is incapable of the sexual act which is called adultery, and the charge would have carried along, on its face, its own refutation. The statute, as just stated, only intended to make certain that it was actionable per se to charge anyone with adultery or fornication, that is, any-one who could commit the act which is denominated adultery or fornication. That was all, I think, that was in the legislative mind. Therefore, I do not regard the statute as cutting any figure or aiding plaintiff by the use of the expression "any person."

But aside from the expression "any person," the charge of either adultery or fornication is a charge of a disgraceful and immoral act, and when made it means, and is understood to mean, immoral and unlawful sexual intercourse without regard to whether the party charged is married or single. Adultery and fornication are the same act, but committed by different actors, and, therefore, when one is falsely charged with either, whether married or single, it is actionable per se. This view is sustained by an interesting case in Pennsylvania where the court had under consideration the charge of fornication, though the party charged was a married man. It was there contended that the charge could not possibly be true. But the court said that "courts and juries will understand words in the same way other people would. We are not to examine dictionaries nor turn to our law books to find out their legal technical meaning . . . . Can it be seriously doubted but that the defendant intended to defame the plaintiff, and charge him with unlawful sexual intercourse?" Further on, the court said: "The objection is, that being a married man, he could not commit fornication, which is but saying the speaker mistook the legal name of the offense . . . . In many cases the action will lie, notwithstanding there is repugnance in the words themselves or made so by matters apparent on the record; as if one say of a widow having children born in wedlock, she is a whore and her children are bastards. Now though the children born in wedlock, cannot possibly be bastards, yet they may be reported such . . . . The cases of charging one with the murder of a man living, not being actionable, because impossible, were not much respected by Lord HOLT, who, in such case, observed, the fault is greater, it is a double crime." Continuing, the court said: "The rule is now well established that no inconsistency or want of grammatical propriety will prevent the words from being actionable when the intention to charge the party with a crime clearly appears, and when a criminal charge is conveyed by the defendant's expression. The liability to make reparation, cannot be affected by any impropriety in the communication, whether legal or grammatical, when the loss of character and its probable consequences, constitute the ground of action, though the act charged is in legal strictness impossible." [Walton v. Singleton, 7 Sergeant and Rawles 450.] To the same effect are the cases of Beirer v. Bushfield, 1 Watts 23, and Andres v. Koppenheafer, 3 Sergeant and Rawles 255. Those cases were discussed at length and approved by the...