Kersting v. White

• Decision Date: 26 April 1904
• Court: Missouri Court of Appeals
• Parties: KERSTING v. WHITE.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 730

107 Mo. App. 265

KERSTING v. WHITE.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

SLANDER — MEMBER OF RELIGIOUS SOCIETY — CONDUCT OF OTHER MEMBER — PRIVILEGED COMMUNICATION — FAILURE TO PLEAD — EFFECT — PLAINTIFF'S INTRODUCTION OF ANSWER — BINDING EFFECT — LOSS OF SOCIAL STANDING — ADMISSIBILITY OF EVIDENCE.

1. Defendant was a member of a religious society, and as such owed the moral duty to aid in purging it of immoral or unworthy members, and, to such end, to communicate to it any information he honestly believed to be true, showing immoral conduct by a member. He inquired of H., another member, as to what occurred at a meeting of the society to consider the propriety of bringing charges of immorality against E., a third member, and, after H.'s recital of his own testimony, repeated a statement of E.'s daughter that E. and his housekeeper "were living in sin together." Defendant honestly believed this to be true, and H. was already informed of the supposed fact. No one else was present. Held, that defendant's communication to H. concerning the housekeeper was privileged.

2. Where, in a slander suit, plaintiff's evidence conclusively shows a privileged communication, without any proof of express malice, she should be nonsuited, though defendant has failed to plead his privilege.

3. Where, in a slander suit, plaintiff introduces defendant's abandoned answer, which shows a privileged communication, but does not offer proof of express malice, the case is nevertheless for the jury, which must determine the weight to be attached to defendant's statements.

4. In a slander suit, evidence that, after the slander had been circulated, certain of plaintiff's friends would not look at or speak to her, without proof of the occasion of this change of attitude, is inadmissible.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by Louise Kersting against Robert White. Judgment for plaintiff, and defendant appeals. Reversed.

Kinealy & Kinealy, for appellant. Crigler & Leahy and Robt. Shackelford, for respondent.

Statement.

BLAND, P. J.

Omitting caption, the second amended petition, on which the cause was tried, is as follows:

"Plaintiff files this, her second amended petition, leave of court first had and obtained, and states: That she is a resident of the city of St. Louis, has never been married, and at all times hereinafter mentioned was and is now, single and unmarried. That defendant, Robert White, is a resident of Woodland, St. Louis county, and state aforesaid. That for and during the last year from about October, 1900, to the time of filing this petition, plaintiff was in the employ of one J. C. Elms as a servant for hire at his residence in Woodland, St. Louis county, Missouri, and, as such servant, she had charge of the house and household affairs of J. C. Elms, together with the care and custody of his three small children; he, the said Elms, being during all this time a widower; and he, the said Elms, during all this time, was living and making his home at his said residence in Woodland, where and in which said residence he and his minor children and this plaintiff were living together; and the fact that plaintiff was in the employ of said Elms as a servant at his house and home in Woodland, and that the plaintiff was living there in the same house and home at Woodland with the said Elms, as his servant, and that the said Elms lived at his said home in Woodland at all times hereinafter mentioned, were known to the defendant and to the said Edward Henry, hereinafter referred to.

"For cause of action, plaintiff states: That at a date unknown to her, but within two months prior to the filing of this petition, and about the last of May or the first of June, 1901, in the city of St. Louis, and in the presence of one Edward Henry, a citizen of St. Louis, and at that time an employé of a large dry goods establishment of the city of St. Louis, and to the said Edward Henry, defendant used and published the following false and slanderous words, to wit: `Mr. Elms and Miss Kersting are living in sin together at Elms' house.' And that, when the above words were spoken by defendant to the said Henry, both Henry and defendant knew of the relation of master and servant existing between plaintiff and Elms; knew that they lived together in the same house; and knew that J. C. Elms was a widower, and that plaintiff was an unmarried woman in his (Elms') employ as a house servant at that time. That by said words so used the defendant intended to and did refer to this plaintiff, and that by said words he intended to and did charge the plaintiff with the offense of cohabiting with the said Elms, and with being a fornicatress, and that the said words were so understood by the said Henry at the time they were spoken to him. That said words, so spoken, used, and published, were and are false. That they were known to be false by defendant at the time he spoke them. That they were falsely and maliciously spoken by defendant of and concerning this plaintiff, and were spoken with the intent and purpose of defaming the good name and reputation of plaintiff. That by said false, slanderous, and malicious words spoken, used, and published as aforesaid, plaintiff was made to suffer great mental pain, was greatly damaged in her good name and fame, and that by said false and malicious words spoken, used, and published as aforesaid, plaintiff's reputation as a pure, virtuous, and chaste woman was and is greatly injured, and that she has suffered great humiliation and disgrace thereby. That she has been brought into contempt and ridicule, exposed to public wrath and hatred, and deprived of the public countenance and social intercourse amongst her former friends and acquaintances, all to her damage in the sum of $25,000. Wherefore plaintiff prays judgment against defendant in the sum of $25,000, and for her costs."

The answer was a general denial.

The plaintiff, in her own behalf testified, in substance, that she was thirty-three years of age; that she was unmarried, and for over two years prior to the trial had been employed by Mr. J. C. Elms as his housekeeper, and to look after his two minor children, one nine and the other seven years of age; that the home of Mr. Elms was in Woodland, a suburb of the city of St. Louis; that he had been a widower about three years, and kept in his employ a cook and a girl to do general housework; that plaintiff was acquainted with defendant, Robert White; that Mr. White lived five or six blocks from Mr. Elms, and used to visit there; that she had seen him five or six times at the Elms residence, conversing with Mr. Elms; that she knew Edward Henry; that, prior to the institution of her suit and prior to his marriage, Mr. Henry usually came out to the Elms home on Saturday evenings, and stayed until the following Monday morning; that he saw her and knew that she was employed by Mr. Elms—saw her working around the house, fixing the beds and attending to the table; that the last time he came out he brought his wife, to whom he had then been recently married; that plaintiff's father and mother had been dead for a good many years; that prior to entering the employ of Elms she had, for about seventeen years, lived with her widowed sister, in the city of St. Louis; that she had been at Mr. Elms' about nineteen months before she heard of the alleged slander against her; that she first heard it from one Stuckert, who lived in the Laclede building, in the city of St. Louis; that, after she had a conversation about it with Stuckert, she went to see Edward Henry, in company with one of her sisters, some time in April, 1901, at his place of business, with Scruggs, Vandervoort & Barney; that, after having a conversation with Henry, she went to defendant's home to see him about the slander, but he was not in; that she never heard any one, except Stuckert and Henry, say anything in regard to the alleged slander.

The plaintiff offered in evidence three answers, which the defendant had theretofore filed in the cause, as proving or tending to prove that defendant admitted that he had spoken the defamatory words charged. Defendant's counsel objected, and called the attention of the court to the fact that on a former trial defendant had denied, under oath, that he spoke the words; that he had the stenographic notes of his evidence taken at the former trial—and asked permission to examine defendant on his voir dire, which request was denied by the court, to which ruling defendant saved an exception.

In respect to the alleged slander and its publication, the three abandoned answers are substantially alike. The second one (omitting caption) is as follows:

"Defendant, for amended answer to plaintiff's petition, filed by leave of court, states that he has no knowledge or information sufficient to form a belief whether or not plaintiff is a resident of the city of St. Louis, or has never been married, or is single or unmarried, or was so at all times hereinafter mentioned, or that said Elms paid her the sum of twenty-five dollars a month.

"Defendant denies that the words alleged in said petition to have been spoken, used, or published by him of or concerning plaintiff and said Elms were known to defendant to be false at the time which it is alleged he spoke them or at any time, or that they were falsely or maliciously spoken by defendant, or were spoken with the intent or purpose of defaming the good name or reputation of plaintiff, or that defendant, by said words alleged to have been spoken by him of or concerning plaintiff, intended to charge that plaintiff was a fornicatress or guilty of fornication; and, as to whether said words were false, this defendant has no knowledge or information sufficient to form a belief. This defendant further denies that, because of any words spoken, used, or published by him of or concerning plaintiff and said Elms, plaintiff was...