Cameron v. Cameron
| Decision Date | 05 February 1912 |
| Citation | 144 S.W. 171,162 Mo.App. 110 |
| Parties | MINNIE CAMERON, Respondent, v. ALEC. A. CAMERON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
B. B Gill & Son, John H. Taylor, Paul D. Kitt and Fred S. Hudson for appellant.
L. A Chapman and Scott J. Miller for respondent.
This is a suit for slander and is here on the appeal of defendant from a judgment recovered by plaintiff for $ 2500 actual and $ 2500 exemplary damages. Plaintiff is the daughter-in-law of defendant and at the time of the alleged offense was living with her husband on a farm owned by defendant in Livingston county. Defendant lived in Chillicothe but helped his son work the farm and, therefore, was a frequent visitor at plaintiff's home. Outwardly the relations between plaintiff and defendant were friendly but some unpleasant incidents had engendered mutual dislike between them. On or about November 8, 1908, defendant was at the farm and had dinner there in company with a negro farm hand named Curry. Plaintiff prepared and served the meal during the course of which defendant complained of the absence of butter. Plaintiff answered that defendant took home with him all the butter produced on the place. Defendant contradicted her and asserted that plaintiff sold all the butter. Thus far the evidence of the parties is in accord.
Plaintiff testifies that the quarrel over the butter culminated in defendant calling her "a God damned little black bitch." Plaintiff exclaimed, "Don't you call me that," whereupon defendant called her "a God damned little whoring bitch." The conversation was in the presence and hearing of the negro. Plaintiff seized a poker and started towards defendant who, deeming discretion the better part of valor, beat a hasty retreat, not standing on the order of his going. A month later, and several days before plaintiff gave birth to her first born child, she went to the barn to feed stock and while there with her husband was again called "a God damned little black bitch," by defendant, who was annoyed because plaintiff refused to take a fork full of hay "and climb over a manger and fence to fill a manger over there." On a subsequent occasion defendant used the same expression in a quarrel he had with plaintiff. Defendant found some castaway jar rubbers which seemed useful to him and accused plaintiff of wastefulness in throwing them away. Plaintiff retorted that defendant wasted biscuits on his dog and then defendant hurled his favorite epithet at plaintiff.
Defendant denies in his testimony that he used the epithets we have quoted in the quarrel about butter but admits he called plaintiff a liar. Though his version of his quarrels with plaintiff, if accepted, would relieve him of the charge of slander made in the petition, it shows he was guilty of coarse and brutal conduct towards his son's wife while she was in a condition deserving of kind and considerate treatment. The negro called as a witness by defendant corroborated the testimony of defendant.
The petition alleges "that the defendant, intending to injure plaintiff in her good name, fame and reputation, before her neighbors and friends, did at her home in Livingston county, in the State of Missouri, on or about the 8th day of November, 1908, speak, in the presence and hearing of others, to, of and concerning this plaintiff, and meaning this plaintiff--are a 'God damn little black bitch'--are a 'God damn little whoring bitch,' and did on or about Friday, December 12, 1908, say to plaintiff, in the presence of others, 'you are a God damn little black bitch,' thereby charging this plaintiff with being a person of unchaste character and an immoral person, and said language was so understood by several persons hearing said words spoken to, of and concerning plaintiff. . . . That, by the use of the language as above set forth she has been damaged in her good name, fame and reputation among her neighbors and friends, by the false and slanderous words used by the defendant to this plaintiff, in the presence and hearing of other persons, her neighbors and friends, and that plaintiff has suffered great mental pain and anguish, on account of the language used by the defendant, charging this plaintiff with the crime of adultery, and of being a person of immoral character and a person of bad reputation. Wherefore, plaintiff says she has sustained damage in the sum of five thousand dollars.
The answer is a general traverse. At the conclusion of the evidence, plaintiff, compelled thereto by a motion to elect offered by defendant, elected to base her cause of action on the slanderous words alleged to have been spoken November 8, 1908.
Defendant attacks the petition on the ground that it fails to charge that the alleged slanderous statement was false. We do not deem it necessary to decide whether or not such averment is essential to the statement of a good cause of action since we find the petition characterizes the words alleged to have been spoken by defendant as "false and slanderous." Defendant did not attack the petition by demurrer or motion and, applying the liberal rules of construction that obtain in such instances, we hold the petition contains the legal equivalent of a formal averment of the falsity of the slanderous words.
Defendant insists that his request for a peremptory instruction should have been granted for the reason that there is no evidence in the record of a publication of the alleged slander. It is true, as...
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