Foster v. Aubuchom

• Decision Date: 05 April 1920
• Docket Number: No. 13530.,13530.
• Citation: 221 S.W. 741
• Parties: FOSTER v. AUBUCHOM.
• Court: Missouri Court of Appeals

221 S.W. 741

FOSTER v. AUBUCHOM.

No. 13530.

Kansas City Court of Appeals. Missouri.

April 5, 1920.

Appeal from Circuit Court, Buchanan County; Lawrence A. Vories, Judge.

"Not to be officially published."

Action by Henry C. Foster against Dennis Aubuchon. From a judgment for plaintiff, defendant appeals. Affirmed.

S. P. Reynolds and H. B. Pyle, both of St. Joseph, for appellant. `

Randolph & Randolph, of St. Joseph, for respondent.

BLAND, J.

This is a suit for slander. Plaintiff recovered a verdict and judgment for $100 actual and $200 punitive damages. The words charged to have been spoken of plaintiff by the defendant were that plaintiff "broke down my fence and stole my hog."

The evidence shows that plaintiff and defendant lived on adjoining farms and were friendly with each other at one time, but some time before the occurrence involved herein they became estranged. Defendant fed his hogs some time after dusk one evening. They were in a wire inclosure which was some distance from his house. He, testified that a short time thereafter while he was eating his supper he heard a commotion and went to his hogs and found one gone. It had gotten out through the fence which had been pushed up. . He further testified that at the latter time he heard some one driving nails at the home of plaintiff. The next day his son found the hog penned up on plaintiff's premises. Plaintiff demanded $2 for taking up and keeping the hog and the payment of an old bill in the sum of $15.50. Thereafter, on several occasions, defendant said of plaintiff that plaintiff had stolen his hog. Plaintiff claimed that the hog wandered onto his premises, where he found it, and, not knowing to whom it belonged, he took it in charge.

In Defendant makes the point that the court erred in giving plaintiff's instruction No. 3. This instruction told the jury that plaintiff had a right to take up and hold defendant's hog if the hog was trespassing on plaintiff's property. The instruction further told the jury what the rights of plaintiff and defendant were under the statute concerning trespassing animals running at large. The objection to the instruction is that it is an abstract proposition of law and not applicable to the issues in the case. Defendant's answer consisted of a general denial and a plea of justification and mitigation of damages. Defendant insisted at the trial that the facts and circumstances tended strongly to show that plaintiff had stolen the hog. Defendant requested and had given an instruction that told the jury the presumption of guilt under the criminal law in reference to the recent possession of stolen property. Under the circumstances, we think that plaintiff's instruction No. 3 was not materially erroneous.

Defendant complains of plaintiff's instruction No. 5. This instruction told the jury that there were two kinds of malice, malice in fact and malice in law, and defined the two. It told the jury that, if they found that the words spoken of plaintiff were slanderous and false, then they might infer that they were maliciously spoken. It seems to be defendant's position that he had a right to show mitigating circumstances in defense of the action for actual damages. Of course, this is not the law. Mitigation only goes to the amount of punitive damages. The instruction was proper. Callahan v. Ingram, 122 Mo. 355, 369, 370, 371, 26 S. W. 1020, 43 Am. St. Rep. 583; Carpenter v. Hamilton, 185 Mo. 603, 84 S. W. 863; Arnold v. Savings Co., 76 Mo. App. 159.

It is insisted that plaintiff's instruction No. 6 was improper. This instruction told the jury that, if defendant alleged in his answer that the words spoken were true, the burden of proof was upon defendant to establish the truth of such words. There is no question but that this was a proper instruction. We fail to see how it could possibly be a comment upon the evidence as defendant claims. In connection with this point, defendant states that he denied in his answer the utterance of the words. There was a general denial followed by a plea of justification and mitigation. Of course, defendant in his answer having admitted the utterance of the words cannot now claim that they were not spoken. This admission in the answer is inconsistent with a plea denying the utterance of the words.

Plaintiff's instruction No. 7 is complained of. It told the jury that the law presumes that a man...