Parsons v. Henry

Citation177 Mo. App. 329,164 S.W. 241
PartiesPARSONS v. HENRY.
Decision Date16 February 1914
CourtCourt of Appeal of Missouri (US)

A young man being injured, a woman physician interested in the case called on another physician and stated that she had a boy who was injured, and would like to have him attend the boy. On the physician showing surprise that she had a boy, stated it was an adopted son, abandoned by his mother, who went away with another man. The woman physician then asked what charge would be made for his services, and was told that no charge was made for service rendered to the family of another physician. Held that, in an action against the woman physician by the young man's mother the slanderous statement was not a privileged communication.

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

In slander cases, evidence of malice may consist of circumstances and reasonable inferences to be drawn from the facts proven.

Appeal from Circuit Court, Jackson County; F. G. Johnson, Judge.

Action by Jessie B. Parsons against Frances J. Henry. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Botsford, Deatherage & Creason and J. H. Bremmerman, all of Kansas City, for appellant. Jay Reed, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for slander. The judgment in the trial court was for her.

The charge in the petition is that: "This boy's mother [meaning plaintiff herein] abandoned her child when he was four years old, and went away with another man. That by said words and statement defendant meant and intended to charge plaintiff with going away with a man other than her husband for the purpose of illicit cohabitation, and meant and intended to charge this plaintiff with unchastity and immorality, and with living in adultery, and with abandoning and leaving to the care of strangers her infant child, and that said words were so understood by the parties who heard them."

The words charged, standing alone, are not slanderous per se. They do not impute a crime, nor that plaintiff was unchaste or guilty of adultery. Merely to abandon a child is not necessarily a crime. The statute (section 4490, R. S. 1909) makes it a crime if a father or mother shall expose a child under six years of age "in a street, field or other place, with intent wholly to abandon it," etc. So to say of a woman that she abandoned her child, and "went away with another man," does not necessarily mean that she was committing adultery. There are many innocent ways in which a woman may go away with "another man." Lemaster v. Ellis, not yet officially reported, 158 S. W. 904.

If the words charged are slanderous per se, no innuendo is necessary (Ogden on Libel and Slander, 100, 473); but, if they are not in themselves actionable, they cannot be rendered so by innuendo, without some averment of extrinsic facts which makes them so (Townsend on Slander, § 336), for, while the statute (section 1837, R. S. 1909) makes it unnecessary to state extrinsic facts, yet it only means it is unnecessary to allege that the words applied to the plaintiff. It is still required to state such extrinsic facts as are necessary to show the words are slanderous. Curry v. Collins, 37 Mo. 328, 329; Christal v. Craig, 80 Mo. 367, 373.

And here extrinsic circumstances are stated in the petition which show the charges are such that, if applied to this plaintiff, are slanderous. She is alleged to have been a woman above reproach in character, and married, and living with her husband. This is followed by the words alleged to be slanderous, which in turn are followed by a statement, by way of innuendo, of the slanderous meaning intended, viz., going off with a man, other than her husband, in adultery. We think the petition sufficient.

Defendant insists there was a failure of proof. The evidence for plaintiff has been torn into pieces by defendant, and parts of it presented to us which, if all, would justify the claim. But the principal witness stated positively that he remembered the words used by defendant in addressing her conversation to him, and they were these: "This boy's mother abandoned him when he was four years old, or when he was an infant child; she abandoned him, and went away with another man who is not her husband, but I will say for her that she afterwards married that man she went away with, and I took this child over, and the neighbors found homes for all of them."

Here is evidence literally sustaining the greater part of the words of the petition, and which proves all the substantial words in the charge. The petition is that "this boy's mother abandoned her child when he was four years old," and the proof is in those words, except "him" is substituted for "the child" and the expression "an infant child" is put in the proof as an alternative for "four years old." That is, the witness stated it was one or the other. The charge that she "went away with another man" is proven literally, with the additional words "who is not her husband," etc. The slanderous part of the charge is that plaintiff "went away with another man," and these were proven literally.

Plaintiff claims that substantially this was proof of the words charged, and that no more was necessary. The rule in this state is that the words proven must be the same in substance as those charged, and that equivalent words will not do. Berry v. Dryden, 7 Mo. 324. In that case Judge Scott said that "the rule is stated in the books that the slander proved must substantially correspond with that charged in the declaration." It is this expression, that the words proven must "substantially" correspond with those charged, that has caused some confusion. So the judge in the case just cited said that it must not be understood that it will suffice if the proof be of words which convey the same imputation as those charged. He stated that "the meaning of the rule seems to be that, if the words charged to have been spoken are proved, but with the omission or addition of others not at all varying or affecting their sense, the variance will not be regarded." The judge then quotes from Maitland v. Goldney, 2 East, 438: "Though the plaintiff need not prove all the words laid, yet he must prove so much of them as is sufficient to sustain his cause of action, and it is not enough for him to prove equivalent words of slander." That case has been approved a number of times: Birch v. Benton, 26...

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