Haynes v. Robertson

• Decision Date: 14 April 1915
• Parties: A. B. HAYNES, Respondent, v. N. A. ROBERTSON, Appellant
• Court: Missouri Court of Appeals

175 S.W. 290

190 Mo.App. 156

A. B. HAYNES, Respondent, v. N. A. ROBERTSON, Appellant

Court of Appeals of Missouri, Springfield

April 14, 1915

Appeal from Polk County Circuit Court.--Hon. C. H. Skinker, Judge.

Judgment affirmed.

L Cunningham and B. J. Emerson for appellant.

(1) A petition which attempts to set out several distinct and separate causes of action in one count is bad and a demurrer to it should be sustained. Gardner v. Robertson, 208 Mo. 605. (2) Such is the rule in actions for libel and slander. Flowers v. Smith, 214 Mo. 98; Christal v. Craig, 80 Mo. 367. (3) If plaintiff's petition would authorize a recovery on any more than one alleged statement of defendant, then defendant's motion to require the plaintiff to elect should have been sustained. Christal v. Craig, 89 Mo. 367; Flowers v Smith, 214 Mo. 98. (4) Defendant's demurrer to the evidence offered at the close of plaintiff's evidence should have been sustained. Callahan v. Ingram, 122 Mo. 366; Christal v. Craig, 80 Mo. 367; Krup v Corley, 95 Mo.App. 640; Parsons v. Henry, 177 Mo.App. 329. (5) Unless the words alleged and proven be slanderous per se or proper innuendo or colloquium be pleaded and proved there can be no recovery. Kunz v. Hartwig, 151 Mo.App. 94; Krup v. Corley, 95 Mo.App. 650.

W. W. Wood and Rechow & Pufahl for respondent.

(1) The first point made in appellant's brief is as to the sufficiency of the plaintiff's petition. The authorities, cited by counsel, settle the point against him, even if the point had been well taken in the first place. The defendant did not stand on his demurrer, but answered over, hence waived the point, if there had been one. Hanson v. Neal, 215 Mo. 256; Hubbard v. Slavens, 218 Mo. 598; Houtz v. Hellman, 228 Mo. 655; State v. Stevens, 134 Mo.App. 115; Wyler v. Ratican, 150 Mo.App. 474; Berkbigler v. Cape Girardeau, 152 Mo.App. 543; Summers v. Keller, 152 Mo.App. 626. (2) So also was the motion to strike out and to elect waived. Hanson v. Neal, 215 Mo. 256; Hubbard v. Slavens, 218 Mo. 598; Sundmacher v. Lloyd, 135 Mo.App. 517; McMurray v. Railroad, 225 Mo. 272; Norman v. Sheip, 142 Mo.App. 138; Connor v. Railroad, 149 Mo.App. 675; Vanloon v. Vanloon, 140 S.W. 631. (3) The next point made, that the demurrer to the evidence should have been sustained, is refreshing, in view of the fact that the defendant pleaded guilty both in his answer and his evidence to speaking the exact words alleged. (4) When a person says that a married man was caught in bed with another man's wife he is guilty of a slander per se. R. S. 1909, sec. 5424; Vanloon v. Vanloon, 159 Mo.App. 255; Nelson v. Wallace, 48 Mo.App. 195; Buckley v. Knapp, 48 Mo. 152; Brown v. Wintsch, 110 Mo.App. 264; Stieber v. Wensel, 19 Mo. 513. (5) Where the words are slanderous per se and are admitted, then it is proper to instruct that the only question is one of damages. Brown v. Globe Printing Co., 213 Mo. 613; Markey v. Railroad, 185 Mo. 384; Parks v. Railroad, 178 Mo. 108; Henderson v. Kansas City, 177 Mo. 477; McLean v. Kansas City, 100 Mo.App. 625.

STURGIS, J. Robertson, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

The defendant appeals from a verdict and judgment against him in a slander suit. The defamatory words charged in plaintiff's petition to have been spoken by defendant concerning him are: "Have you heard about Booker Haynes, the preacher, being caught in bed with Joe Leith's wife, and that he and Leith had a fight and that Leith blacked his eye, and that Haynes has gone west? It is so." These last words, "It is so," were stricken out by amendment after plaintiff's evidence was all in. Because the words spoken are charged in a single count to have been spoken on several different dates to different persons the defendant unsuccessfully demurred to the petition as stating several separate and distinct causes of action in one count. The defendant then filed a motion to have plaintiff elect as to these alleged different causes of action and this motion was overruled. The defendant then answered and went to trial on the merits, thereby waiving any error in overruling his demurrer and motion to elect. [Cook v. Globe Printing Co., 227 Mo. 471, 525, 127 S.W. 332; Vanloon v. Vanloon, 159 Mo.App. 255, 269, 140 S.W. 631; Hanson v. Neal, 215 Mo. 256, 270, 277, 114 S.W. 1073; Hubbard v. Slavens, 218 Mo. 598, 616, 117 S.W. 1104; Houtz v. Hellman, 228 Mo. 655, 664, 128 S.W. 1001.]

Besides this, in actions for slander different sets of words spoken on different occasions and to different hearers may be included in one count of a petition and constitute but one cause of action, provided such different words spoken at the different times charge or relate to one and the same offense. [Lewis v. McDaniel, 82 Mo. 577; Pennington v. Meeks, 46 Mo. 217; Brown v. Wintsch, 110 Mo.App. 264, 270, 84 S.W. 196.] The case of Flowers v. Smith, 214 Mo. 98, 129, 112 S.W. 499, relied on by defendant as holding the contrary, states that the various libelous publications made at different times and joined in one count "refer to entirely different conduct on part of plaintiff, and to wholly different matters." Christal v. Craig, 80 Mo. 367, is based on the same doctrine. The present petition merely charges in the one count repetitions of the same slander to different individuals as constituting a single cause of action and is unobjectionable.

The defendant, by his answer, admits the speaking of the exact words as charged to one person, Ireland, and with slight and immaterial variations to others. For instance, he admits that he said to the witness Mead, a young man, "Charley, tell your pa they say Brother Haynes was caught in bed with Brother Leith's wife and they had a fight and Leith blacked Haynes' eye." This witness further testified that the next morning he saw the defendant and the defendant asked him if his father believed this story and, on the witness replying that his father did not, the defendant said: "It is sure so." The witness McCracken testified that when he went into the defendant's furniture store, defendant began the conversation about plaintiff and used these words: "Well, he just asked me if I had heard the news upon Brother Haynes; I says, 'What news?' He said, 'The news about Brother Haynes.' I says, 'What is that?' He says, 'He was caught in bed with Joe Leith's wife and they had a fight.'"

The plaintiff is a minister of the gospel of the Baptist Church, following his vocation in the general vicinity of Humansville, Polk county, Missouri, where the defendant lived. Joe Leith, whose wife is referred to in the slanderous words, lived in that vicinity also, so that all three of these persons were known to the various witnesses. We readily agree that it is essential in proving a slander to prove enough of the exact words laid in the petition to constitute the slanderous accusation (Parsons v. Henry, 177 Mo.App. 329, 164 S.W. 241; Hauser v. Steigers, 137 Mo.App. 560, 119 S.W. 52), but all the words charged need not be proved. Some may be omitted as immaterial and additional ones proved which are not necessary to or which do not destroy the charge, provided enough of the exact words are proved to contain the poison and constitute the precise slander averred. Words and clauses may be transposed which do not change the sense and the sentence may be changed from the interrogative to the narrative form, or vice versa. [Lewis v. McDaniel, 82 Mo. 577.] There is no question but that a slanderous charge may be as effectively made and circulated in the form of an inquiry as by direct accusation, especially where, as here, the inquirer assumed the truth of the charge and merely inquired whether the hearer has previously heard of it. [Pennington v. Meeks, 46 Mo. 217.] The essential words to the present charge are: "Haynes . . . caught in bed with Joe Leith's wife," and these words were proved or admitted to have been uttered in the hearing of each witness.

Error is assigned in that plaintiff did not by proper innuendo allege in the petition or prove by the various witnesses who heard the alleged slanderous words that they understood the same in a defamatory sense, that is, to charge the defendant with fornication or adultery or being an immoral person. This involves the question whether the words spoken are slanderous per se. By the statute, section 5424, Revised Statutes 1909, it is made actionable slander to publish falsely and maliciously, in any manner, that a person has been guilty of fornication or adultery. If the statement that a minister of the gospel has been caught by a married man in bed with such man's wife does not necessarily charge him with adultery, then defendant made his meaning plain when he added that, on so finding the preacher, the husband had blacked his eye and he had gone west. Why should the husband black his eye and does not flight raise a presumption of guilt? The words proved are, under the circumstances shown, clearly slanderous per se. [Vanloon v. Vanloon, 159 Mo.App. 255, 140 S.W. 631; Brown v. Wintsch, 110 Mo.App. 264, 84 S.W. 196; Kersting v. White, 107 Mo.App. 265, 284, 80 S.W. 730.]

Moreover the defendant by his answer, in pleading that his inquiries and statements to the various witnesses containing the slanderous words were privileged communications, alleges that it was his duty as a member of the church to communicate to other members his information that plaintiff, a preacher, "was immoral and leading a sinful life," in order that the church members might enforce its rule not to permit one to preach "who was immoral or lived an immoral or sinful life." It is true that defendant was not asserting plaintiff's guilt as of his own knowledge, though he did not, at all times at least, give the accusation as...