Kunz v. Hartwig

• Decision Date: 10 November 1910
• Citation: 151 Mo. App. 94,131 S.W. 721
• Parties: KUNZ v. HARTWIG.
• Court: Missouri Court of Appeals

131 S.W. 721

151 Mo. App. 94

KUNZ v. HARTWIG.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. APPEAL AND ERROR (§ 1053)—ADMISSION OF EVIDENCE—CURE OF ERROR BY INSTRUCTIONS.

Where the court at the conclusion of the testimony in an action for slander required the jury to find that the slanderous words were spoken during designated months in order to find a verdict for plaintiff, the admission of evidence of what defendant had said prior thereto, and the refusal to confine the scope of the inquiry to slanderous utterances during the designated months, were not erroneous.

2. LIBEL AND SLANDER (§ 104)—MALICE—EVIDENCE—ADMISSIBILITY.

In slander, evidence of what defendant had said or done with reference to plaintiff, and any charges that he may have made similar to the charge complained of, may be shown to prove malice, whether the charges were made before or after the speaking of the slanderous words complained of.

3. LIBEL AND SLANDER (§ 104)—MALICE— EVIDENCE—ADMISSIBILITY.

Malice, in slander, may be proved by extrinsic evidence.

4. TRIAL (§ 262)—INSTRUCTIONS—REQUESTS—INCONSISTENCY.

A requested charge by defendant, in slander, that, unless he spoke the words charged in the petition or enough of them to constitute the charge of misconduct, the verdict should be for him, given as the counterpart of a charge given for plaintiff, is not inconsistent with the position taken by defendant by demurring to the evidence on the ground of insufficiency to support the petition.

5. LIBEL AND SLANDER (§ 104)—EVIDENCE—ADMISSIBILITY.

In slander it is competent to prove that other slanderous words were uttered in a foreign language by defendant concerning plaintiff to prove malice.

6. LIBEL AND SLANDER (§ 100)—PLEADINGS—VARIANCE.

Since, in slander for defamatory words spoken in a foreign language, the petition must set forth the words in the foreign language together with a proper translation of them, where the petition alleges the words as spoken in the English language, and the evidence shows that they were spoken in a foreign language, the variance between the petition and the proof is fatal.

7. APPEAL AND ERROR (§ 842)—QUESTIONS REVIEWABLE — VARIANCE BETWEEN PETITION AND PROOF.

The question as to what is a variance between the allegations of the petition and the proof is one of law, and where it is made in the trial court, it may be reviewed on appeal.

8. LIBEL AND SLANDER (§ 100) — ISSUES, PROOF, AND VARIANCE.

One suing for slander must set out in his petition the very words complained of, and the words so charged must be proved, and proof of words of the same or similar import is not sufficient, but all the slanderous words need not be proved, and it is sufficient where those proved constitute the precise charge of slander alleged, and where the words charged are proved, together with other words not varying the sense, the variance between the petition and the proof is not material.

9. LIBEL AND SLANDER (§ 86) — INNUENDO — NECESSITY.

Where, in slander, the petition in charging the specific slanderous words is not aided by any inducement or colloquium, there can be no recovery, unless the words are slanderous per se.

10. LIBEL AND SLANDER (§ 112)—PETITION — EVIDENCE—SUFFICIENCY.

In slander, evidence held not to prove the uttering by defendant of the words charged in the petition precluding a recovery.

11. LIBEL AND SLANDER (§ 86) —INNUENDO— NECESSITY—MEANING OF WORDS.

In slander, the words charged to have been spoken will be construed in their most innocent sense, unless there are averments in the petition giving them a sinister meaning.

12. LIBEL AND SLANDER (§ 100)—PLEADING—VARIANCE.

A petition for slander alleging that the defendant had said that he had had sexual intercourse with plaintiff is not supported by evidence that he had said that he had had illegitimate intercourse with plaintiff, since the words "sexual" and "illegitimate" are not substantially the same, and since the proof after eliminating the word "illegitimate" does not charge adultery.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Paulena Kunz against Robert Hartwig. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

A. H. Wear, for appellant. Hamlin & Seawell, for respondent.

NIXON, P. J.

This appeal is from a judgment for $300 in favor of Paulena Kunz in a suit for slander commenced on the 20th day of August, 1908. The amended petition was in seven counts, but the finding for the respondent was on the second count, which is as follows: "And for another cause of action against the defendant, she (the plaintiff) says she is at this time the wife of A. F. Kunz, and was on the date herein mentioned, and since their marriage they have lived happily together. That on the ____ day of August, 1908, the defendant maliciously and falsely uttered of and concerning the plaintiff, in the presence of divers persons, the following false and defamatory matter, to wit, that Mrs. Kunz was nothing but a damned whore, and that he had had sexual intercourse with her ; that said false and malicious statements were uttered by the defendant with the intent to injure plaintiff in her good name and reputation among her neighbors and friends, and to cause her husband to withdraw his love and affection from her, and that said false and malicious statements have injured her reputation as a virtuous woman among her neighbors and friends, for which she has suffered actual damages in the sum of three hundred dollars, and punitive damages in the sum of two hundred dollars, for which she prays judgment."

The answer besides containing a general denial, alleges that for a long time prior to the time the slanderous words were alleged to have been spoken, the plaintiff's reputation in the neighborhood for truth and veracity, for chastity, for general immorality, and in respect to the matters alleged in the amended petition was notoriously bad; that by reason thereof defendant was induced to and did believe in the truth of said charges, and from what was said in the neighborhood as to plaintiff having been guilty of acts of unchastity and acts of adultery with the persons mentioned in the petition, did believe that plaintiff was an immoral woman. It is then alleged that whatever defendant may have spoken was without malice, "and for the purpose of remonstrating with such persons as spoke to him of said rumors and acts of immorality against any further publication or utterance of the said rumors against the plaintiff, and in advice to such persons * * * not to make further notoriety of said rumors, but that the matters should be communicated to the plaintiff as to the grave charges that were in circulation as to her reputation and character, in order that the plaintiff might correct the said rumors, if the charges were untrue, and that she might reform her conduct if said charges were true, and to the end that peace might be restored in the said neighborhood."

1. Appellant's first contention is that evidence as to what defendant said more than two years before the commencement of the action was improper, incompetent, and immaterial and could not be the basis of an action....