[Copyrighted Material Omitted]
Appeal
from St. Louis Circuit Court.--Hon. John W. McElhinney
Judge.
REVERSED
AND REMANDED.
STATEMENT.
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
employee of a large dry goods establishment of the city of
St. Louis, and to the said Edward Henry 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 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, sometime 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 anyone 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 his 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,
or concerning plaintiff and said Elms plaintiff was made to
suffer great mental pain, or was damaged in her good name or
fame, or that her reputation as a pure, virtuous or chaste
woman was or is injured; or that she had suffered humiliation
or disgrace thereby, or that she had been brought into
contempt or ridicule or exposed to public wrath or hatred, or
deprived of the public countenance or social intercourse or
amongst her former friends or acquaintances.
"Defendant
further states that at the times mentioned in said petition
he and the said Edward Henry were members of a society of
about forty Christian persons, associated together for moral
and spiritual services and exercises; and one J. C. Elms, of
Woodland aforesaid, was also a member of said society and the
plaintiff was employed by said Elms as housekeeper and
resided at the home of said Elms at Woodland aforesaid; that
under the rules and regulations of said society, no person
would then be permitted to remain a member of it who was
immoral or lived an immoral or sinful life, and under the
rules and regulations of said society it was then the duty of
any of its members who had acquired knowledge, or to whom a
charge is made by any reputable person, that any other member
is immoral or is leading an immoral or sinful life, to
communicate such charge or knowledge to the other members, in
order that such charge shall be inquired into, and the
accused person so known or charged to be immoral or leading
an immoral or sinful life might be cited to appear before the
members of said society and answer said charge or give
assurance of repentance and reform, or otherwise be expelled
from said society; and should the result of a preliminary
inquiry show persuasive grounds for such...
