Parsons v. Henry

• Decision Date: 16 February 1914
• Citation: 164 S.W. 241,177 Mo.App. 329
• Parties: JESSIE B. PARSONS, Respondent, v. FRANCES J. HENRY, Appellant
• Court: Kansas Court of Appeals

164 S.W. 241

177 Mo.App. 329

JESSIE B. PARSONS, Respondent, v. FRANCES J. HENRY, Appellant

Court of Appeals of Missouri, Kansas City

February 16, 1914

Rehearing Denied 177 Mo.App. 329 at 335.

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Botsford Deatherage & Creason for appellant.

Omar E Robinson, H. H. McCluer and Jay Reed for respondent.

OPINION

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 (Sec. 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 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, sec. 336.] For, while the statute (Sec. 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 shows the words are slanderous. [Tilles v. Publishing Co., 241 Mo. 609, 632, 145 S.W. 1143; Curry v. Collins, 37 Mo. 324, 329; Christal v. Craig, 80 Mo. 367, 373.]

And here extrinsic circumstances are stated in the petition which shows 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. Golldney, 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 Mo. 153; Attebury v. Powell, 29 Mo. 429, 435; Bundy v. Hart, 46 Mo. 460; Nicholson v. Rogers, 129...