Cornelius v. Cornelius

• Decision Date: 28 February 1911
• Citation: 135 S.W. 65,233 Mo. 1
• Parties: MAGGIE CORNELIUS v. BENJAMIN F. CORNELIUS, Appellant
• Court: Missouri Supreme Court

135 S.W. 65

233 Mo. 1

MAGGIE CORNELIUS v. BENJAMIN F. CORNELIUS, Appellant

Supreme Court of Missouri, First Division

February 28, 1911

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Reversed and remanded.

Chas F. Strop and James W. Boyd for appellant.

(1) The trial court should have sustained the demurrer to the evidence. There was a total failure on the part of plaintiff to prove that what was done and said was done and said with any wrongful motive or intention, and in this character of action, the suit being against the father, there is and was no presumption in favor of plaintiff, and furthermore there was no proof that what defendant did or said caused the separation, and again whatever was said by defendant came within the rule of privilege and hence was not sufficient upon which to base the present action. Barton v Barton, 119 Mo.App. 507; Leavell v. Leavell, 122 Mo.App. 654; Bennett v. Smith, 21 Barb. 439; Rubenstein v. Rubenstein, 69 N.Y.S. 1067; Stanley v. Stanley, 68 P. 187; Tucker v Tucker, 32 L. R. A. 623; Young v. Young, 30 P. 592; Park v. Park, 91 P. 830; Sheriff v. Sheriff, 56 P. 960; Oakman v. Belden, 47 A. 553. Also authorities cited under point 2. (2) The statements charged to have been made by defendant fell within the rule of what is termed qualified privilege and should have been excluded, but even if admitted in evidence were not sufficient to sustain plaintiff's action, and as plaintiff's whole case is based thereon the court erred in refusing to instruct the jury as requested by defendant relative thereto. 25 Cyc. 393; 18 Am. and Eng. Ency. Law, 1029-1031; Beeler v. Jackson, 64 Md. 589; Billings v. Fairbanks, 136 Mass. 177; Rude v. Nass, 79 Wis. 321; Rosenbaum v. Roche, 101 S.W. 1164; Atwill v. McIntosh, 120 Mass. 180; Livingston v. Bradford, 73 N.W. 137; Buisson v. Huard, 106 La. 768; Erber v. Dunn, 12 F. 530; Davis v. State, 22 S.W. 979; Baysett v. Hire, 22 So. 44; Van Horn v. Van Horn, 56 N. J. L. 325. (3) The trial court erred in giving plaintiff's first instruction. This instruction gave to the jury a roving commission to find for plaintiff. It nowhere stated what facts the jury should find. It did not require the jury to find the facts which were alleged in the petition as a basis of recovery. The instruction does not in any manner follow the petition. Hamilton v. Railroad, 114 Mo.App. 513; Kohr v. Railroad, 117 Mo.App. 307; Boyd v. Railroad, 108 Mo.App. 306; Allen v. Railroad, 183 Mo. 432. (4) The court erred in refusing various instructions asked by defendant to the effect that the presumption of law and of fact was that defendant acted from correct motives and on honest purpose, and the court further erred in instructing the jury that defendant must have had reasonable grounds for his belief and action. The court proceeded upon the theory that this cause was to be tried as though the defendant were a stranger or meddler. The defendant's relation to plaintiff entitled him to every presumption of good conduct and the burden was upon plaintiff to establish as a fact the contrary. Barton v. Barton, supra; Leavell v. Leavell, supra; Multer v. Knibbs, 193 Mass. 556; Workman v. Workman, 85 N.E. 997; Pollock v. Pollock, 29 N.Y.S. 37; Zimmerman v. Whiteley, 95 N.W. 990; Brown v. Brown, 32 S.E. 321; Reid v. Reid, 33 N.E. 638; Trumbull v. Trumbull, 71 Neb. 186; Eagon v. Eagon, 60 Kas. 705. (5) The verdict was excessive and was against the evidence in the case and was the result of bias and prejudice.

Allen, Gabbert, Mitchell & Martin for respondent; Perry S. Rader of counsel.

(1) The demurrer to the evidence, offered at the close of all the testimony, was properly overruled. There was substantial evidence to support every material allegation of the petition. 1st. There was positive proof that what defendant said and did was said and done with a malicious motive and intention. 2d. There is positive proof that what defendant said and did caused the separation. Nichols v Nichols, 147 Mo. 387; Hartpence v. Rogers, 143 Mo. 623; Nichols v. Nichols, 134 Mo. 187; Modisett v. McPike, 74 Mo. 636; Strode v. Abbott, 102 Mo.App. 170; Love v. Love, 98 Mo.App. 562; Price v. Price, 91 Iowa 698; Lewis v. Hoffman, 66 N.Y.S. 428; Servis v. Servis, 172 N.Y. 438; Klein v. Klein, 101 S.W. 382; Nevins v. Nevins, 68 Kan. 410; Barton v. Barton, 119 Mo.App. 509; White v. White, 140 Wis. 538; Reading v. Gazzam, 200 Pa. St. 105. (a) In determining whether or not the demurrer to the evidence should have been sustained, plaintiff is entitled to have her own evidence taken as true, to have defendant's evidence, where contradictory of hers or of her witnesses, taken as untrue, and is entitled to every reasonable and favorable inference of fact naturally deducible from her own testimony and the uncontradicted testimony of defendant. Forbes v. Dunnavant, 198 Mo. 199; Barth v. Railroad, 142 Mo. 549; Meily v. Railroad, 215 Mo. 584; Gordon v. Park, 219 Mo. 612; Koerner v. Car Co., 209 Mo. 141. (b) "In a legal sense malice implies an act wrongfully and intentionally done, without just cause or excuse. . . . It imports the existence of an intention from which flows any unlawful and injurious act committed without legal justification. . . If I traduce a man, whether I know him or not, or whether I intend to do him an injury or not, the law considers it done of malice, because it is done wrongfully and intentionally." Pennington v. Meeks, 46 Mo. 220; McNamara v. Transit Co., 182 Mo. 676; Gott v. Pulsifer, 122 Mass. 235; Moore v. Stevenson, 27 Conn. 19; Israel v. Israel, 109 Mo.App. 374; Nott v. Stoddard, 38 Vt. 32; 18 Am. & Eng. Ency. Law, 998. (c) The charge made to plaintiff on October 26th and repeated to her and her husband on the 31st, that she had no character and had been too intimate with her next door neighbor, was slanderous per se; especially when defendant in justification of those charges, brought forward the falsehood, as he says he did, that she had "frequently" gone to the barn to meet Marker. R. S. 1909, sec. 4817; State v. Derry, 20 Mo.App. 552; State v. Bonine, 85 Mo.App. 462. (d) Where the words spoken are in themselves actionable, no proof of malice is necessary; the law will imply it. Malice will be inferred from the wrongful act. Carpenter v. Hamilton, 185 Mo. 615; Farley v. Carpenter, 113 Mo.App. 226; Price v. Whitely, 50 Mo. 323; Hudson v. Garner, 22 Mo. 423. (e) If the words which defendant testified he used to plaintiff and her husband on October 31st were the only words spoken to them, they were still actionable. She said to him that she understood him to say she had no character, and he told her (1) that she was too familiar with Marker, seemed friendly with him, was holding conversations with him, didn't want the man in his presence, didn't want him in the yard, didn't want him about; (2) that he knew Marker the previous spring had thrown a pebble against the house when Marker alone was at his home, and in response to it she had gone to the window and looked out; that she had abandoned her work of stretching curtains and walked clear across the yard to talk to Marker, and leaned on the fence as she did; that her actions had been indiscreet; that she was not ladylike, that her conduct was not becoming a lady; that "she was inducing him;" and that she had frequently gone to the barn to meet Marker. These accusations were themselves actionable, though possibly not per se slanderous. Bray v. Callahan, 155 Mo. 43; Noeninger v. Vogt, 88 Mo. 589; Burch v. Bernard, 107 Minn. 211; Sullivan v. Com. Co., 152 Mo. 268; Overton v. White, 117 Mo.App. 576; Israel v. Israel, 109 Mo.App. 366; Moberly v. Preston, 8 Mo. 462; Elfank v. Seiler, 54 Mo. 134; Young v. Fox, 49 N.Y.S. 634. (f) Even if the matter spoken by defendant to plaintiff and her husband on the morning of October 31st was qualifiedly privileged, as defendant claims, yet plaintiff proved malice by showing it was false and that he did not have probable cause to believe it to be true -- for there is no privilege to intentionally and wrongfully defame. "Assuming that the evidence for plaintiff showed that the occasion of the communication was one of qualified privilege, the case was nevertheless for the jury, for there was evidence tending to destroy the privilege, viz., that the published matter was false, and that defendant knew it was false, and did not have probable cause to believe it to be true." Ashcroft v. Hammond, 132 A.D. 6; Atwill v. Mackintosh, 120 Mass. 183; Israel v. Israel, 109 Mo.App. 373; Reading v. Gazzam, 200 Pa. St. 104; Overton v. White, 117 Mo.App. 576; Yager v. Bruce, 116 Mo. 473; Newell on Libel and Slander (2 Ed.), 475; Newell on Defamation, p. 392, sec. 10, and p. 391, sec. 7; Laughlin v. Schnitzer, 106 S.W. 908. The evidence was sufficient to establish malice, even though the communication was privileged. Mohrman v. Ohse, 17 La. Ann. 64; Weber v. Butler, 81 Hun (N. Y.) 244. (g) The communications to plaintiff and her husband on October 31st, were not qualifiedly privileged, because defendant was the originator of the charges and what he had previously said to each of them separately provoked the inquiry. A demand for a retraction does not make the communication privileged. Smith v. Mathews, 1 M. & Rob. 151; Bekair v. Chausse, 15 Quebec Super. Ct. 512; Pattison v. Jones, 8 B. & C. 578, 15 E. C. L. 303; Nott v. Stoddard, 38 Vt. 31; Griffiths v. Lewis, 7 Q. B. 61, 53 E. C. L. 61; Thorn v. Moser, 1 Den. (N. Y.) 488; Wharton v. Chunn, 115 S.W. 887. (h) The rule of qualified privilege should not be applied strictly in this case. This is not a suit for slander. If it were, then that rule should be applied as it is in slander suits. There could have been a suit for slander founded on the words spoken to plaintiff, but even therein it would...