Overton v. White

• Decision Date: 13 March 1906
• Parties: OVERTON, Administrator of LOUISA KERSTING, Respondent, v. WHITE, Appellant
• Court: Missouri Court of Appeals

93 S.W. 363

117 Mo.App. 576

OVERTON, Administrator of LOUISA KERSTING, Respondent, v. WHITE, Appellant

Court of Appeals of Missouri, St. Louis

March 13, 1906

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

AFFIRMED.

STATEMENT.--The action is for slander and this is the second appeal of the cause. On the first appeal the judgment was reversed for the admission of incompetent evidence (107 Mo.App. 265). After the second trial, which resulted in a verdict for plaintiff she departed this life and the cause has been revived in the name of her administrator. The material allegations of the petition (the second amended one) on which the case was tried, are as follows:

"That for and during the last year from about October, 1900, to the time of filing this petition, plaintiff was in the employ of one J. C. Elms, as a servant for hire at his residence in Woodland, St. Louis county, Missouri, and as such servant she had charge of the house and household affairs of J. C. Elms together with the care and custody of his three small children, he, the said Elms being during all this time a widower, and he, the said Elms during all this time was living and making his home at this said residence in Woodland, where and in which said residence he and his minor children and this plaintiff were living together; and the fact that plaintiff was in the employ of the said Elms as a servant at his house and home in Woodland; and that the plaintiff was living there in the same house and home at Woodland with the said Elms as his servant; and that the said Elms lived at his home in Woodland, at all times hereinafter mentioned, were known to the defendant and to the said Edward Henry hereinafter referred to.

"For cause of action plaintiff states that at a date unknown to her, but within two months prior to the filing of this petition and about the last of May or the first of June 1901, in the city of St. Louis, and in the presence of one Edward Henry, a citizen of St. Louis, and at that time an employee of a large dry goods establishment of the city of St. Louis, and to the said Edward Henry, defendant used and published the following false and slanderous words, to-wit "Mr. Elms and Miss Kersting are living in sin together at Elms' house." And that when the above words were spoken by the defendant to the said Henry, both Henry and defendant knew of the relation of master and servant existing between plaintiff and Elms; knew that they lived together in the same house, and knew that J. C. Elms was a widower and that plaintiff was an unmarried woman in his, Elms,' employ as a house-servant at that time.

"That by said words so used the defendant intended to and did refer to this plaintiff and that by said words he intended to and did charge the plaintiff with the offense of cohabiting with the said Elms, and with being a fornicatress; and that the said words were so understood by the said Henry at the time they were spoken to him.

"That said words so spoken, used and published were and are false; that they were known to be false by defendant at the time he spoke them; that they were falsely and maliciously spoken by defendant of and concerning this plaintiff and were spoken with the intent and purpose of defaming the good name and reputation of plaintiff.

"That by said false, slanderous and malicious words spoken, used and published as aforesaid, plaintiff was made to suffer great mental pain, was greatly damaged in her good name and fame; and that by said false and malicious words spoken, used and published, as aforesaid, plaintiff's reputation as a pure, virtuous and chaste woman was and is greatly injured; and that she has suffered great humiliation and disgrace thereby; that she has been brought into contempt and ridicule; exposed to public wrath and hatred, and deprived of the public countenance and social intercourse amongst her former friends and acquaintances, all to her damage in the sum of $ 25,000. Wherefore plaintiff prays judgment against defendant in the sum of $ 25,000 and for her costs."

Omitting caption, the answer (the fourth one) on which the case was tried, is as follows:

"Defendant by leave of court files this his amended answer to plaintiff's second amended petition and says that he was informed and believes that plaintiff was living in the house of said Elms in the fall of the year 1900 and in 1901; that said Elms and some of his small children were then living there, and that said Elms was then a widower; and defendant also says that in June, 1901, he stated to said Henry, under circumstances hereinafter set forth, that a daughter of said Elms had charged her father with living in sin at his house and defendant denies every other allegation in said petition set forth.

"And defendant further states that on or about June, 1900, said Elms was a widower, and he with his three married daughters and his son James and two or three quite small children, the latter being of his last marriage, all lived at the residence of said Elms at his house in Woodland, St. Louis county, Missouri; that said Elms had previously been a member of a society of Christian men and women then and yet existing in said Woodland, and in said city of St. Louis, known as the 'Brethren,' and whose members bound themselves to live truly Christian life according to the teachings of the Holy Scriptures, and to retain none in their society who did not live such a life, and of which society defendant was a member at all times hereinafter mentioned; that said Elms up to the year had been a member of said society, but in that year he was expelled from said society because of the belief of its other members that he was unworthy to be one of them; that subsequently said Elms made in writing to said society a confession of his unworthiness, a profession of repentance, and an application for readmission, and on it was readmitted to fellowship by said members, but because of the nature of his former offenses as confessed by him as aforesaid, he was, thereafter, more or less, an object of watchfulness on the part of said members lest he should again show himself unworthy of their fellowship; that on or about the autumn of 1900, the said married daughters of said Elms removed to the city of St. Louis, and plaintiff was employed by said Elms and went to live at his house in Woodland aforesaid, and soon after and while plaintiff resided at the house of said Elms it was currently reported in said Woodland and to and amongst said members that she performed, and said Elms caused her to perform, services for him of a nature which led to remarks unfavorable to her and to said Elms and were also calculated to cause said members to institute an inquiry as to the fitness of said Elms to remain in said society under it rules; that some months after the plaintiff commenced to reside at the house of said Elms, his said son James left his father's house after a quarrel with his father and plaintiff, and afterwards, from about January 1, 1901, and in February and March, 1901, said son and the said daughters of said Elms, spread amongst the members of said society reports concerning said Elms and his acts including all the matters aforesaid and charged him with living in sin, and said daughters privately and at public meetings of the said members related to said members their said charges and said reports and stated said charge to this defendant and demanded of said members, including this defendant, that their father be expelled from said society or forced to abandon his alleged evil ways; that in January, February and March, 1901, those aforesaid reports and statements became known in said Woodland, which is largely inhabited by said members, and known to said members, and in consequence of the aforesaid previous acts of said Elms and of his said confession and in consequence of said reports, statements and the said demands of the said daughters of said Elms, and of statements of his son derogatory to said Elms which were known in the months last mentioned in said Woodland, and to said members, the said Elms became an object of suspicion to the other of said members and they instituted an inquiry to ascertain whether or not said Elms were indeed living in sin, to the end that if he were found, to be so living proper steps should be taken to expel him from said society as an unworthy member, or to procure a reformation of his life and conduct. That thereupon, members of said society were, by said society, directed to ask an explanation from said Elms of his conduct and of said reports, and in obedience to said direction did so, and notified him of the charge made by his said daughters and of said reports, and asked him to state his defense thereto, if he had any, with the result that after a long time spent in said inquiry and in expostulating with said Elms, no satisfactory answer or explanation being obtained, he said Elms, was requested not to attend the meetings of said society, and thereupon he ceased to attend such meeting or to be regarded as one of its members.

"Defendant further states that said charge and said reports made as aforesaid were of such a nature that coming from the said daughters and said son of said Elms, they would awaken suspicion and distrust of reasonable and fair-minded persons as to the life then led by said Elms, and were generally believed in the neighborhood and by said members; that said daughters and said son of said Elms were known as persons who led good Christian lives and were regarded as truthful persons and hence their statements were generally regarded as true during said months of January, February and March, 1901, at said Woodland, and amongst said members.

"Defendant further states that said Edward Henry and d...