Miller v. Dorsey

• Decision Date: 31 May 1910
• Citation: 149 Mo. App. 24,129 S.W. 66
• Parties: MILLER v. DORSEY.
• Court: Missouri Court of Appeals

129 S.W. 66

149 Mo. App. 24

MILLER v. DORSEY.

St. Louis Court of Appeals. Missouri.

May 31, 1910.

1. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS — MODIFICATION.

In a suit for slander by charging theft, instructions that defendant was not liable, if the things charged to have been stolen would not be subject to larceny, were properly modified by stating that defendant must have spoken the words without malice.

2. LIBEL AND SLANDER (§ 101) — MALICE — PRESUMPTION.

An accusation of theft being actionable slander per se, unless it relates to facts or acts which could not have been a crime, is presumably malicious.

3. LIBEL AND SLANDER (§ 124) — THEFT — FIXTURES — INSTRUCTIONS.

Since the question of fixtures, as applied to such articles as an iron bracket fastened to a wall of a house, but moved from house to house by the owner as he changed his location, posts lying on the ground, and firewood, being a mixed question of fact and law, defendant's instructions, which treated them as fixtures, were properly refused as being misleading.

4. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL — MATTER COVERED.

Instructions correctly covered by those given are properly refused.

5. LIBEL AND SLANDER (§ 76) — LIMITATION OF ACTIONS.

Under the statute of limitations, suit for slander must be brought within two years.

6. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTIONS.

Instructions authorizing recovery for slander uttered beyond the statute of limitations are harmless error, where the evidence fails to show slander beyond the statutory period.

7. LIBEL AND SLANDER (§ 124) — EVIDENCE — SUFFICIENCY — INSTRUCTIONS.

Evidence, in an action for slander, held insufficient to warrant an instruction that plaintiff could not recover because a specified person acted as his agent in eliciting the accusation for the purpose of the suit.

8. LIBEL AND SLANDER (§ 63) — DEFENSES — PASSION AND ANGER.

In a slander suit, passion and anger of defendant may be shown to mitigate damages but not as a defense.

9. LIBEL AND SLANDER (§ 120) — PUNITIVE DAMAGES — PROPRIETY.

Punitive damages were properly awarded for slander by charging theft.

10. LIBEL AND SLANDER (§§ 117, 119, 120) — INSTRUCTIONS — PUNITIVE DAMAGES — PROPRIETY.

In an action for slander by charging theft, it is proper to instruct that on finding for plaintiff he might be awarded damages to compensate him for the mortification and shame he might have suffered, and the disgrace attempted to be cast upon him, and the damage to his reputation, as well as to punish defendant for his wrongful and malicious attack.

11. LIBEL AND SLANDER (§ 112) — EVIDENCE — SUFFICIENCY.

Evidence, in a suit for slander by charging theft, held to sustain a recovery.

12. LIBEL AND SLANDER (§ 80) — PLEADING — PARTICULARITY REQUIRED.

Generally the same particularity is necessary in a petition for slander as is required in an indictment or information.

13. LIBEL AND SLANDER (§ 7) — FORGERY — WORDS IMPUTING CRIME — SUFFICIENCY.

Statements that a contract was not the one defendant signed, and that plaintiff and his wife changed it, is insufficient to show a slanderous accusation of forgery.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Action by Jasper Miller against George J. Dorsey. From a judgment for plaintiff, defendant appeals. Partly affirmed; partly reversed and remanded.

Plaintiff commenced this action against defendant in the circuit court of Lewis county on the 28th of January, 1908. Afterwards he filed an amended petition containing five counts. As the answer to the petition takes up each count separately, for convenience we state the answer to each count as we proceed with the statement.

The first count charged that defendant "on the ___ day of __, 1907," in the presence of one Thomas Day and in a conversation with defendant, said of and concerning plaintiff, "You are a thief! Get away from here! You are a thief! You are a dirty, lying, thieving s___ of a b___."

Answering this count, defendant interposed: First, a general denial; second, a specific denial of speaking the words charged; third, specifically denies that by any words spoken he charged plaintiff with having committed larceny and denies the party present understood him so to charge; fourth, he denies knowledge of having spoken the words charged, and alleges that plaintiff had at the time insulted, aggravated, abused, and enraged him, and whatever he said was said in the heat of passion caused and provoked by plaintiff as aforesaid, and were words of abuse only and not of accusation, and were so intended as such and the hearers so understood them; fifth, he alleges that the articles which he is charged with having accused plaintiff of stealing were fixtures, a part of the real estate, that they were not the subject of larceny, and that the taking would only be trespass, and the hearers were at the time so informed and knew.

By the second count it is charged that the defendant accused plaintiff of stealing by speaking of him as follows: "I didn't call him a thief; but he stole some things out of the house and some wood."

The answer to this is substantially the same as that to the first count.

By the third count it is charged that the defendant accused plaintiff of having committed larceny by speaking of and concerning him as follows: "Miller stole the stuff. He took the stuff; and if that isn't stealing, I would like to know what is."

The answer to this is practically as to the other two counts, with the additional averment that the person to whom it is alleged the language was spoken of and concerning plaintiff "at the instance and request of plaintiff, that he might in behalf and for plaintiff, obtain and procure statements and utterances from defendant," to enable plaintiff to bring this suit and for the purpose of obtaining such statements, related and communicated to him utterances and communications of plaintiff, and this aggravated and enraged defendant and caused him to speak and utter any words of abuse, if any he did, on that occasion, and whatever he said was said in the heat of passion, and were words of abuse only, and not of accusation, and the nearer so knew and understood.

By the fourth count it is charged that defendant accused plaintiff of forgery by speaking of him as follows: "They have changed the contract."

To this fourth count a general denial, a specific denial of speaking the words charged, and a denial that the hearer understood defendant to charge plaintiff was guilty of forgery, or that he intended so to charge, was interposed.

By the fifth count it is charged that the defendant accused plaintiff of forgery by speaking of and concerning him the following words: "The contract is not the contract I signed. The contract did not suit Miller's wife, and they changed it. The contract they have is not the contract I signed. My daughter and I will both swear that it is not my signature to it."

To this count defendant interposed the same defenses as interposed to the fourth count, with the additional averments as to the conversation having been brought on by a person acting at the instance of plaintiff as are contained in the answer to the third count.

A general denial was filed by way of reply.

The trial was had before the court and a jury. Testimony was introduced on the part of plaintiff tending to show that defendant had spoken the words charged, or enough of the exact words charged to sustain the allegations of the several counts of the petition as to the words uttered.

There was evidence on the part of plaintiff tending to show that there had been a dispute between plaintiff and defendant as to a matter of indebtedness between them and as to the acts of plaintiff in removing certain property from a house and farm, which had been occupied by plaintiff but sold by him to defendant, and that in this conversation or dispute the defendant enumerated certain articles which he claimed did not belong to plaintiff, such as window curtains, muslin sheeting which was nailed up to divide a room in the house, brackets off of the wall, some fence posts not in place but strung along a division line, and some cordwood, which he claimed plaintiff had taken, and in the course of this dispute defendant became angry and uttered the words complained of in the first count, along with other words which were very abusive. There was evidence on the part of plaintiff tending to show that the words charged in the second and third counts of the petition were uttered by defendant of plaintiff concerning the same transaction and articles. There was also testimony on the part of plaintiff tending to show that the brackets referred to which he had taken from the house were iron brackets which had been put up by him and which he had been accustomed to move around with him when he moved.

Witness Norris, who was the one claimed to have been sent to defendant by plaintiff or his attorneys to trap him into a conversation and secure evidence for the prosecution of this case, denied any such employment.

A witness for plaintiff was asked on cross-examination if he understood from what defendant said that he was calling or was intending to charge plaintiff with being a thief, or whether he understood it to be simply words of abuse and reproach. He answered that he "would take it from nature. If I would take it from the nature of the words, it was in the heat of passion; but the words would demonstrate thief, I reckon. * * * I understood from that statement that Dorsey was out of humor. I think it was demonstrated he was out of humor and would never have said it if he had not been. He didn't cause me to believe that Mr. Miller was a thief."

One of the witnesses testified that he supposed from what he knew of the articles defendant accused plaintiff of carrying away that they belonged to the place, were fixtures, and that plaintiff could not be truthfully said to have stolen them.

We do not think it...