McCollum v. Smith

• Decision Date: 03 December 1917
• Docket Number: No. 12622.,12622.
• Citation: 199 S.W. 271
• Parties: McCOLLUM v. SMITH.
• Court: Missouri Court of Appeals

199 S.W. 271

McCOLLUM v. SMITH.

No. 12622.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Action by Wardie McCollum against John Smith. Judgment for plaintiff, and defendant appeals. Affirmed.

Burns, Burns & Burns, of Brookfield, E. B. Fields, of Browning, and J. W. Clapp, of Milan, for appellant. J. H. McKinney, of Brookfield, C. C. Bigger, of Laclede, and H. J. West, of Brookfield, for respondent.

BLAND, J.

This is an action for slander. Plaintiff recovered a judgment for $500 actual and $500 punitive damages, and defendant has appealed.

It was charged in the petition and proved at the trial:

That the defendant said of the plaintiff, a married woman, to one Fred Deskins, "What has that God damned black-tongued lying bitch been telling you?" to which question the said Fred Deskins said to the defendant, `Who?' to which the defendant replied, `Luther McCollum's wife.' `You don't know all; the boys have been hanging around here like a pack of dogs after a bitch.'"

Defendant's first point is that the words used were unambiguous, and could easily be understood by the jury, and it was error for the court to permit the witness Deskins to testify that he understood the words, "The boys have been hanging around here like a pack of dogs after a bitch," to mean "that they were hanging around there for unvirtuous purposes." In cases like this:

"Words are to be taken in the sense which is most obvious and natural and according to ideas they are calculated to convey to those to whom they are addressed. The principle of common sense which now governs in the construction of words requires that a court shall understand them as other people would. The question always is: How would ordinary men naturally understand the language?" Jones v. Banner, 172 Mo. App. loc. cit. 138, 157 S. W. 969; McGinnis v. Knapp & Co., 109 Mo. loc. cit. 140, 18 S. W. 1134.

Applying this rule to the words spoken in the case at bar, it seems to us that it is plain that by such words the defendant charged plaintiff with being an immoral woman, and that no explanation was necessary. In view of this fact, the court would have been justified in sustaining the objection made. Everhart v. Bryson, 244 Mo. loc. cit. 520-521, 149 S. W. 307. However, the refusal on the part of the trial court to sustain the objection to the testimony did not constitute reversible error, because the testimony of the witness was of no importance. It could have had no bearing on the issue, as the meaning of the words charged was obvious, and the statement of the witness could have had no effect whatever on the mind of the jury. Brown v. Wintsch, 110 Mo. App. loc. cit. 268, 269, 84 S. W. 196.

Defendant urges that the court erred in admitting the testimony of the witness Arnold, in that the words testified to by him were not a repetition of the alleged slander. However, upon examination of the record we find that defendant made no objection to this testimony until after it was given, and then he moved to strike it out. A party is not permitted to sit by and permit the admission of improper testimony and speculate as to whether it will help or hurt him, and then, after he finds the testimony to be unfavorable, to move to strike it out.

Defendant complains of plaintiff's instruction No. 2. This instruction, after setting forth the facts necessary for the jury to find in order to return a verdict for plaintiff, states that, if they find such facts to be true, then they must find for the plaintiff. Objection is made to this instruction on the ground that in slander cases it is the province of the jury to determine the law and the facts. This is the law as to libel, but not slander. Section 14, art. 2, Constitution of Missouri; Grimes v. Thorp, 113 Mo. App. loc. cit. 658, 88 S. W. 638; Humphreys v. Pile, 144 Mo. App. 28. 128 S. W. 208; Heller v. Pulitzer Pub. Co., 153 Mo. loc. cit. 214, 54 S. W. 457.

Defendant...