Ogle v. Sidwell

• Decision Date: 19 July 1912
• Citation: 149 S.W. 973
• Parties: OGLE v. SIDWELL
• Court: Missouri Court of Appeals

149 S.W. 973

OGLE v.SIDWELL

St. Louis Court of Appeals. Missouri.

July 19, 1912.

1. LIBEL AND SLANDER (§ 100)—EVIDENCE —ADMISSIBILITY.

In an action for slander for stating that plaintiff corruptly procured his acquittal on a charge of assault, defendant was properly permitted to show that the trial was generally discussed in the community, and that others, joining in conversations with defendant, made statements similar to those attributed to him, though neither mitigation nor justification was pleaded.

2. EVIDENCE (§ 116) — ADMISSIBILITY—EXPLANATORY MATTERS.

In an action for slander in speaking of accused's trial for an offense, defendant, having testified concerning the "other parties taking sides," was properly permitted to state what he meant by "the other parties."

3. LIBEL AND SLANDER (§ 100)—EVIDENCE—ADMISSIBILITY.

In an action for slander in stating that plaintiff corruptly procured his acquittal in a trial for assault, it was not error to permit defendant to give evidence tending to show that the justice of the peace and the constable, who participated in plaintiff's trial, had acted improperly therein.

4. LIBEL AND SLANDER (§ 124)—INSTRUCTIONS—MALICE.

It was proper to refuse an instruction that, if defendant spoke the words attributed to him, the law presumes they were spoken maliciously, and it was not necessary to prove any express malice; some of the words not being slanderous, and there being no evidence supporting allegations of the use of other words.

5. APPEAL AND ERROR (§ 882)—RIGHT TO COMPLAIN—INSTRUCTIONS.

Where, in an action for slander in stating that in a prosecution against him the plaintiff "got the jurors drunk and bought them," plaintiff, in requesting instructions, treated the gist of his action as being based on the charge of bribery, he cannot complain of an instruction which stated that the only charge in his petition was that defendant charged plaintiff with bribery.

6. APPEAL AND ERROR (& 1068)—HARMLESS ERROR—INSTRUCTIONS— LANDER.

In an action for slander, any error in an Instruction which went only to the question of the amount of damages was harmless, where no damages were allowed.

7. TRIAL (§ 186e)—INSTRUCTIONS—COMMENT OF EVIDENCE.

In an action for slander in stating that plaintiff corruptly procured his acquittal on a trial for assault, an instruction that if, after that trial, defendant engaged in general discussions of it in the community, the fact that others discussed the matter could be considered on the question of punitive or exemplary damages, was not improper, as an undue comment on the evidence.

8. LIBEL AND SLANDER (§ 124)—INSTRUCTIONS.

In an action for slander, an instruction that, though defendant, soon after plaintiff's trial for assault in a justice's court, said that the jury in that trial had been bribed or were drunk, such charges of themselves constitute no cause of action, was not erroneous, as tending to mislead.

9. LIBEL AND SLANDER (§ 124)—INSTRUCTIONS.

In an action for slander in stating that plaintiff was improperly acquitted on a charge of assault, it was proper to instruct that if any remarks made by defendant were made concerning the justice of the peace and the constable who participated in that prosecution, and not concerning plaintiff, verdict should be for defendant, where defendant testified that his remarks referred to the justice and the constable only.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Hugh L. Ogle against Weeden Sidwell.Judgment for defendant, and plaintiff appeals.Affirmed.

J. D. Hostetter, of Bowling Green, P. J. Duvall, of Clarksville, and J. B. Jones, of Frankford, for appellant.Joe Tapley, of Bowling Green, D. A. Ball, of Louisiana, Mo., and Pearson & Pearson, of Louisa, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff against defendant for alleged slander.It is averred in the petition that plaintiff had been on trial before a justice of the peace and a jury in a township in Pike county, plaintiff being charged with an assault upon one Wheeler; that plaintiff was acquitted and discharged.It is further averred, that referring to that verdict of acquittal, defendant had willfully, wantonly and maliciously spoken of and concerning plaintiff and concerning his discharge from the criminal prosecution by the verdict, certain false, defamatory and slanderous words, among others that plaintiff"bought that jury; no jury would ever have cleared him if he had not bought them; he(plaintiff) paid every man on that jury something to turn him loose."He(plaintiff)"got the jurors drunk and bought them; they would not have turned him loose if he had not paid them to do it.""He(plaintiff) bribed the jurors.""It was a concocted thing; it was a bribed jury, and old _____ was drunk and went to sleep in the jury box.""He(plaintiff) bought his way through and swindled his way through there was no doubt but what the jurors were bought and were drunk; the jurors must have been drunk or bribed."He(defendant) had "never heard of such a decision in his life.The jurors must have been bribed or drunk and Hugh Ogle bribed them and also got them drunk."It is charged that in speaking these words In the presence of divers and sundry persons, defendant intended to charge and did charge plaintiff with the commission of a crime under the laws of the state of Missouri, and further intended thereby to charge and did charge plaintiff with committing a criminal offense by corrupting and bribing jurors by giving gifts and gratuities and using unlawful means with intent to bias the minds of the jurors and to influence their verdict thereby, and that the persons in whose presence and hearing the words were spoken by defendant so interpreted and `understood them, and understood by them that defendant asserted that plaintiff committed a criminal offense and bribed the jurors and made them drunk in order to secure a favorable decision in a criminal case.Claiming that he had been greatly injured and had suffered actual damages in the sum of $1,000, he prayed for that and for $4,000 punitive damages.

The answer was a general denial.

The cause was tried before the court and a jury.The jury returned a verdict in favor of defendant, judgment following.

Plaintiff interposed a motion for new trial and saving exception to that being overruled has brought the case here by appeal.

The errors assigned are to the admission of certain evidence on the part of defendant, to the refusal of an instruction asked by plaintiff, and to the giving of several instructions asked by defendant.

We have examined the assignments of error in the admission of testimony.One of these goes to the admission of evidence drawn out either in cross-examination of witnesses or when offered by defendant, tending to show that the trial of the case in which the state was prosecutor and plaintiff was defendant had been pretty generally discussed in the community and that others joining in the conversations with defendant had made statements similar to those attributed to defendant.We do not think this assignment is well taken.All of this testimony came out in connection with conversations that were carried on between defendant and various parties concerning the trial of plaintiff, and it is difficult to see how any connected account of the conversations and of what it is charged defendant said in them and in which defendant is alleged to have uttered the defamatory matter could have been brought out, unless all of the conversation was given.That this trial of plaintiff under the charge of assault was a matter of common discussion among the neighbors and that defendant had merely joined in this general conversation, Certainly went to explain what defendant said in these conversations.The pertinency of this testimony was twofold: First, it gave the whole conversation, and, second, it gave in connection with the conversation the circumstances tending to remove any implication of malice of defendant in his part of these general...