Moberly v. Preston

• Decision Date: 31 January 1844
• Citation: 8 Mo. 462
• Parties: MOBERLY v. PRESTON AND WIFE.
• Court: Missouri Supreme Court

8 Mo. 462

MOBERLY

v.PRESTON AND WIFE.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO LIVINGSTON CIRCUIT COURT.

CLARK, for Plaintiff. 1. The declaration is defective. There is no cause of action sufficiently set out. The innuendo attached to each count does not help it, there being no sufficient colloquium, or previous statement. Dyer v. Morris, 4 Mo. R. 214. 2. The Circuit Court clearly erred in sustaining objections to the questions propounded to the witnesses Bridgman and Hendricks. It is competent for a defendant in slander, upon a plea of not guilty, to prove in mitigation of damages that the slanderous words were first spoken by others. In this case there was not only issue taken upon the plea of not guilty, but upon a special plea in justification, alleging that the defendant only repeated what had been told him by another. 6 Mo. R. 190, Church v. Bridgman and Wife, and the authorities there cited; 1 Binney, 89-92, Kennedy v. Gregory, and Morris v. Duane; 9 Porter's Ala. R. 139, Arington v. Jones. The words as set out in the declaration are not very clearly proved, and if proved at all, it is by witnesses who are entitled to but little credit, as their manner of testifying shows. The whole evidence, considered together, also shows that the defendant was not actuated by malice, or at least such malice as warranted the damages assessed by the jury. Berry v. Dryden, 7 Mo. R. 346.4. It is contended, that the truth of the defendant's special plea was substantially made out by evidence, and that the verdict ought to have been for him. It is therefore insisted, that the Circuit Court erred, first, in not arresting the judgment, and secondly, in not granting a new trial.

STRINGFELLOW, for Defendant. 1. The demurrer to first and third pleas was properly sustained. 1st. In this plea the exact words of the third person must be given; they must be alleged to have spoken falsely and maliciously, and that defendant believed them when he repeated them, and that he repeated them on a justifiable occasion. 1. Chitty's Pl. 532, and note, 911 ibid.; Church v. Bridgman and Wife (as to quo animo), 6 Mo. R. 193. All these requisites are wanting in those pleas. The verdict was not against evidence. The words laid were substantially proved. It is only necessary to prove so many of the words laid as import a charge of fornication. 3. The special plea of defendant was not sustained by. the evidence. 4. The damages were not excessive; but were too little. 5. The questions propounded to Lucretia Bridgman and Betsey Hendricks ought to have been, and were, properly rejected. Anthony v. Stephens, 1 Mo. R. 254; Church v. Bridgman and Wife, 6 Mo. R. 193. 7. The declaration is not defective; but contains all the necessary averments.

TOMPKINS, J.

Francis Preston and Zera, his wife, brought their action, for words spoken, against William Moberly, in the Circuit Court of Livingston county, and there obtained a judgment, to reverse which he prosecutes this writ of error. There are three counts in the declaration. In the first count it is charged, that the defendant, in a conversation held about Zera Preston, while she was sole and unmarried, spoke, of and concerning her, these words: “Mrs. Preston had a child in Kentucky;” meaning she was guilty of fornication. In the second count, after a like colloquium, and allegation of several persons being present, the words charged are, “Preston's wife had a child in Kentucky, before she came to this country;” meaning that she had been guilty of fornication. The third count, after the proper colloquium, charges these words to have been spoken: “Frank Preston's wife had a bastard child while in Kentucky, before she came to this country.” In all of these counts there are proper averments that the words were spoken of and concerning Zera Preston, one of the plaintiffs.

To this declaration, the defendant filed, 1st, the general issue; 2nd, three special pleas of justification. Demurrers were sustained to the first and third special pleas, and issues being joined on the first plea pleaded, and an issue being made on the second special plea, the parties went to trial. The plaintiff had a verdict and judgment for $1,300. The defendant moved in arrest of judgment, and for a new trial.

It is actionable to publish, maliciously and falsely, in any manner whatsoever, that any person has been guilty of fornication or adultery. See the act declaring certain words actionable, p. 531 of the Digest of 1835, title Slander. In each of the three counts the falsehood and malice is charged in the very words of the statute; and from the words charged to have been spoken in reference to the colloquium, the guilt of fornication arises. Each count would have been good on demurrer. It is, then, good on a motion to arrest the judgment, since many defects, that might have been taken advantage of on demurrer, are cured by verdict. Digest of 1835, p. 468, § 7.

It was also urged in arrest that the demurrers of the plaintiff to the first and third pleas were wrongly sustained. The defendant, in the first special plea, alleges, that at the time of speaking and publishing the said several words in the said declaration mentioned, being then and there interrogated, and asked by Lucretia Bridgman, &c., of and concerning the words spoken and published, he then and there answered and declared, &c., that he had heard and been told the same from and by Sarah Cox, &c. This plea is evidently bad. It should have been alleged and proved, that at the time of speaking the words in the deelaration charged, the defendant gave the name of the author. Church v. Bridgman and Wife, 6 Mo. R. 193.^(a)

The third special plea runs thus: “that the said plaintiffs ought not to have or maintain their said action against him, because, he says, that before speaking the words charged in the declaration, the defendant had been told by one Sally Cox, &c., that the said Zera Preston had a child in Kentucky before she came to this country (thereby then and there meaning that she had been guilty of fornication);” and he then alleges, that at the time of speaking the words in the declaration charged, he the said defendant, declared, in the presence and hearing of all to whom he spoke these words, to wit, &c., that he had heard, and been told the same by said Sally Cox, and that he repeated the same with no evil intent.

In Chitty's Pleadings, p. 532, it is said, that a plea of justification of this kind should give a cause of action against the person whom the defendant gives as his author, by showing that the informant spoke the words falsely and maliciously, and that the defendant believed what he heard, and...