Elder v. Oliver

• Decision Date: 24 April 1888
• Parties: SAMUEL O. ELDER, Respondent, v. GENERAL J. OLIVER, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 575

SAMUEL O. ELDER, Respondent, v. GENERAL J. OLIVER, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Louisiana Court of Common Pleas, HON. E. M. HUGHES Judge.

Affirmed.

D. A BALL and CHAMP CLARK, for the appellant: Refusing the opening and the closing of the case to the defendant, under the instructions, gave the plaintiff an undue advantage; more so even, than is accorded to a defendant in a criminal case. The court committed an error in giving the instructions asked for on the part of plaintiff, requiring the defendant to prove said charge by same amount of evidence as is required to convict in criminal cases and beyond a reasonable doubt. Woodrop v. Thacher, 11 A. 621; Carson v. Porter, 22 Mo.App. 179; Wood v. Hibbish, 23 Mo.App. 389. In all civil cases it is the duty of the jury to decide in favor of the party on whose side the weight of evidence predominates. Marshall v. Ins. Co., 43 Mo. 586.

W. H. MORROW, E. ROBINSON, and E. T. SMITH, for the respondent.

OPINION

THOMPSON J.

This was an action for slander, in uttering words which imputed to the plaintiff the commission of the crime of larceny. The defendant admitted the uttering of the words, and justified by alleging their truth, and by alleging several distinct acts of larceny committed by the plaintiff prior to the uttering of the words. After two mistrials there was a verdict and judgment for the plaintiff in the sum of seventy-five dollars, from which the defendant prosecutes this appeal. The errors assigned are:

I. Refusing the opening and closing of the argument to the defendant. This error is not well assigned. Contrary to the rule which obtains in most jurisdictions, the rule in this state is, that " the right to open and close generally rests very much in the sound discretion of the court trying the cause, and an error committed in that regard will not be sufficient to reverse a case, unless it is plainly made to appear that injury has resulted therefrom." Harvey v. Sullens, 56 Mo. 373; Reichard v. Ins. Co., 31 Mo. 518; Farrell v. Brennan, 32 Mo. 333. There is nothing in this record tending to show that any injury resulted to the defendant from the ruling of the court in awarding the opening and closing to the plaintiff.

It may not be improper to add, that in England and in most American jurisdictions where the right to open and close is regarded of such a substantial nature that the denial of it is assignable for error, the plaintiff has this right in every action for slander or libel. Vifquain v. Finch, 15 Neb. 505; Burckhalter v. Coward, 16 S.C. 435, 443; Fry v. Bennett, 3 Bosw. (N. Y.) 200, 232; S. C., affirmed, 28 N.Y. 324. In Cooper v. Wakley, Mood. & M. 248, Lord Tenterden ruled the contrary. But this decision has been overruled in England, and has not been the law in that country since the decision in the leading case of Mercer v. Whall, 5 Ad. & El. (N. S.) 447, in which last case (at page 463), Lord Denman, C. J., said: " If ever a decision was overruled on great deliberation, and by an undeviating practice afterwards, it was that in Cooper v. Wakley. " The English judges, soon after the accession of Lord Denman to the office of Chief Justice of the Queen's Bench, met and discussed this troublesome question, and adopted the following rule: " In actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative is on the defendant." A sketch of the history ?? this rule is given by Lord Denman in his opinion in Mercer v. Whall, supra. Two American decisions (Moses v. Gatewood, 5 Rich. L. [S. C.] 234, and Ransone v. Christian, 56 Ga. 351) hold that, in actions for libel and slander, where the defendant pleads justification, he assumes the affirmative, and the right to begin and reply is with him; but both are contrary to sound principle, and the former is overruled in the state in which it was pronounced, by Burckhalter v. Coward, supra.

This conclusion is in conformity with a rule settled in England after a great controversy and generally followed in this country, that the right to open and close is with the plaintiff in every case where, in order to recover, he has something to prove, whether to establish his right or to show the extent of his damages. Mercer v. Whall, 5 Ad. & El. (N. S.) 447 (overruling Cooper v. Wackley, Mood. & Mack. 248); Huckman v. Fernie, 2 Jur. 444; Veiths v. Hagge, 8 Iowa 163; Robinson v. Hitchcock, 8 Metc. (Mass.) 64; Perkins v. Ermell, 2 Kan. 325, 330; Amos v. Hughes, 1 Mood. & R. 464; Ridgway v. Ewbank, 2 Mood. & R. 217; McConnell v. Kitchens, 20 S.C. 430, 433; Boyce v. Lake, 17 S.C. 481; Kennedy v. Moore, 17 S.C. 464; Burckhalter v. Coward, 16 S.C. 435; Brown v. Kirkpatrick, 5 S.C. 267; Johnson v. Josephs, 75 Me. 544; Spaulding v. Hood, 8 Cush. (Mass.) 602; Thurston v. Kennett, 22 N.H. 151; Belknap v. Wendell, 21 N.H. 175; Lunt v. Wormell, 19 Me. 100; Sawyer v. Hopkins, 22 Me. 276; Washington Ice Co. v. Webster, 68 Me. 449; Page v. Osgood, 2 Gray (Mass.) 260; Comstock v. Hadlyme Ecc. Soc., 8 Conn. 254, 261; Bills v. Vose, 27 N.H. 212; Chesley v. Chesley, 37 N.H. 229; Seavey v. Dearborn, 19 N.H. 351; Fetters v. Muncie National Bank, 34 Ind. 251; Baltimore R. Co. v. McWhinney, 36 Ind. 436, 444; Hamlyn v. Nesbit, 37 Ind. 284; Thompson v. Mills, 39 Ind. 528; Williams v. Allen, 40 Ind. 295; Camp v. Brown, 48 Ind. 575; Aurora v. Cobb, 21 Ind. 493, 509; Shaw v. Barnhart, 17 Ind. 183; Buzzell v. Snell, 25 N.H. 474, 478; Hoxie v. Greene, 37 How. Pr. 97; Carter v. Jones, 6 Carr. & P. 64; S. C., 1 Mood. & Rob. 281; Rogers v. Diamond, 13 Ark. 474. Compare Pope v. Latham, 1 Ark. 66; Finley v. Woodruff, 8 Ark. 328.

II. The next error assigned is, that the court erred in giving instructions, at the request of the plaintiff, to the effect that, in order to establish his justification, it was necessary for the defendant to prove the acts of larceny charged against the plaintiff, by the same amount of evidence which is required to convict in criminal cases, that is beyond a reasonable doubt. It was ruled by the Supreme Court in Polston v. See, 54 Mo. 291, that this is the law, and we know of no subsequent decision of our Supreme Court holding the contrary. We must, therefore, overrule this...