Polston v. See

• Decision Date: 31 October 1873
• Citation: 54 Mo. 291
• Parties: WILLIAM POLSTON, Respondent, v. MICHAEL SEE, Appellant.
• Court: Missouri Supreme Court

54 Mo. 291

WILLIAM POLSTON, Respondent,

v.MICHAEL SEE, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Audrain Circuit Court.

Sanders & Carkener, for Appellant

I. The plaintiff was permitted to detail conversations between himself and one, Johnson, who was in no way a party to the record. The defendant not being present at such conversations, they were hearsay evidence, and inadmissible.

II. The instruction, requiring proof of plaintiff's guilt beyond a reasonable doubt, was erroneous. (Kincade vs. Bradshaw, 3 Hawks, 63; 9 N. H., 150; 25 N. H., 114; Ellis vs Buzzell, Am. Law R. [July 1873], and notes.) In this State an express ruling on this point in a slander suit has never been made; but this point is fully settled in Marshall vs. Thames Ins. Co., 43 Mo., 586. Slander being here essentially a civil action, and the plaintiff therefore being allowed to testify and to rebut the plea of justification (a thing not true where the other rule obtains), there can be no good reason given why a greater degree of evidence should be required than in any other civil suit.

III. Though evidence of defendant's wealth is admissible, as a means of estimating punitory damages, evidence of plaintiff's poverty is not admissible, since it can throw no light on that matter.

Powell & Hughes, for Respondent.

I. When a special plea of justification is set up by the defendant in an action of slander, the same evidence must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime imputed to him. (2 Greenl. Evid., § 426, and cases cited.)

II. The pecuniary conditions of plaintiff and defendant are proper matters to be considered by the jury in estimating the damages in a case of slander. (Buckley vs. Knapp, 48 Mo., 152, and cases cited.)

Forrist & Ladd, with whom was T. J. Powell, for Respondent.

I. In an action of slander, proof may be given of the condition in life of the respective parties to the action, as affecting the question of damages. (Buckley vs. Knapp, 48 Mo., 152; Larned vs. Buffinton, 3 Mass., 546; Townsh. Libel and Sl., § 390; Tillotson vs. Cheetham, 3 Johns., 56; Bodwell vs. Swan, 3 Pick., 376; Smith vs. Lovelace, 1 Duvall [Ky.], 215; Justice vs. Kirlin, 17 Ind., 588.)

II. The time, place and circumstances of taking property, alleged to be stolen, may be shown by either party as bearing upon the question of intention. The animus of the taking, whether felonious or otherwise; and words spoken while the property is being taken, are but verbal acts--part of the res gestæ, and are also competent. (1 Greenl. Evid., § 108, et seq.; Beardslee vs. Richardson, 11 Wend., 25; Lund vs. Tyngsborough, 9 Cush., 36; 3 Greenl. Evid., § 157.)

III. To sustain a plea of justification, alleging the plaintiff guilty of larceny, the same strictness of proof is required, as would be required to convict him of larceny, if indicted therefor. (Bradley vs. Kennedy, 2 G. Green, [Ia.] 231; Wonderly vs. Nokes, 8 Blackf., § 589; Woodbeck vs. Keller, 6 Cow., 118; Darling vs. Banks, 14 Ill., 46; Sperry vs. Wilcox, 1 Met., 267; Comm. vs. Snelling, 15 Pick., 321; Forshee vs. Abrams, 2 Ia., 571; Wilmett vs. Harmer, 8 Car. & P., 695.)

IV. The gravamen of the action was that defendant had accused plaintiff of the crime of larceny, as connected with a single transaction, although the words are said in somewhat different collocations; practically then, there is but one count in the petition. If so, then the general verdict was right, and the judgment rendered legal. (Bradley vs. Kennedy, 2 G. Green, [Ia.] 231; Clemens vs.. Rollins, 14 Mo., 604; Brownell vs. Pac. R. R. Co., 47 Mo., 239; Brady vs. Connelly, 52 Mo., 19.)ADAMS, Judge, delivered the opinion of the court.

This was an action for slanderous words, charged to have been spoken by the defendant of the plaintiff, and thereby imputing to him the crime of larceny in stealing lumber belonging to the defendant.

The slanderous words were set out in three several counts of the petition, which concluded with a prayer for damages to the amount of $5,000.

The answer denied the speaking of the words as charged in the first and second counts, and justified as to the last count, on the ground that the words were true, and that the plaintiff had been guilty of the larceny as charged.

There were several mis-trials, but the case finally resulted in a verdict and judgment for the plaintiff for $500. The verdict was a general one, finding all the issues in favor of the plaintiff, and assessing a single sum of five hundred dollars for his damages.

Each party gave evidence tending to prove the issues on their respective sides. The plaintiff was allowed to prove his own condition in life and also that of the defendant, as bearing upon the question of damages, and an instruction was also given on this point in favor of the plaintiff. During the progress of the trial the plaintiff was introduced as a witness, and was allowed to testify in regard to what had been done and said by him in removing some lumber from the defendant's mill when the defendant was not present.

After the close of the evidence, various instructions were asked and given for the plaintiff, only one of which need be referred to, as there is no point made on the others. The instruction complained of was to the effect, that under the defendant's plea of justification, the same amount of proof was necessary to convict the plaintiff as if he was on trial for the crime, and that if the jury entertained a reasonable doubt o his guilt they must find for the plaintiff; that any such doubt, however, to be available, must be a rational doubt, growing out of the evidence in the case and consistent with it, and not a mere hypothesis or possibility of innocence.

1. The objection, that there was not a finding and assessment of damages on each count of this petition, is not tenable. The words charged in each count had reference to the same crime, and might have been set forth in a single count. It was the same slander, uttered at different times, and it was proper to assess one amount of damages for the entire slander, though imputed at several times.

2. The plaintiff's condition in life, as well as that of the defendant, are proper subjects of inquiry in slander cases on the question of damages. Slander, uttered by a man of great influence in society, would certainly be more injurious than if spoken by a party of no consequence at all.

3. The testimony, which the plaintiff was allowed to give in regard to what was done and said when he took the lumber, was a part of the res gestæ, and was properly admitted. The words spoken by him in the absence of the defendant were verbal acts, and as such admissible as a part of the transaction.

4. The main point discussed here grows out of the instruction by which the jury were told, that if they had a reasonable doubt of the plaintiff's guilt under the plea of justification, they must find the issues for him.

I am not aware, that this question has ever been directly passed on by this court. So far as I know, the legal profession throughout the State have acted on the presumption that it was the settled law. It seems to have been so considered at the Circuits, and it is now for the first time mooted in this court.

It has the support of the English authorities, and, I presume, of the majority of the American courts. The reason of the rule is, that a verdict of a jury on the question of guilt or innocence has at least the same moral force as a verdict in a criminal trial for the same offense. There seems to be no other civil case where a verdict has the same moral force. If this had been a suit for trespass against the plaintiff for the taking and conversion of the defendant's lumber, the simple fact of trespass, without regard to the intention, would have been sufficient to warrant a verdict. The animus furandi might have been totally wanting, and yet the plaintiff be guilty in the law of trespass. Here, as in a trial for the crime of larceny, the animus is the main point before the jury, and the force of the verdict of guilty is looked upon as the same. A party found guilty on a plea of justification, though not liable to the consequences or punishment attached to the same result in a criminal case, is covered by the same moral turpitude, and in the eyes of the community is pointed at by the finger of scorn as equally odious. In actions on policies of insurance, where the defense is that the defendant burnt his own house, it has been held that a mere preponderance of evidence is sufficient to establish the defense. The distinction is, that this is a good defense under the policy, no matter what the intent of the defendant was in burning his house. By doing so, he violated the express terms of the policy, and could not take advantage of his own wrong. Our statute makes it arson for a party to burn his own property in order to recover insurance on the building. The question, whether he burnt it for one purpose or another, is wholly immaterial in an action on the policy. If he voluntarily burnt it at all, he will not be allowed to recover, as, by doing so, he violated the policy itself. The plea of justification in slander is unlike any other civil case, and for this reason it has been treated as an exception to the general rule in regard to the preponderance of the testimony and the amount necessary to a conviction. This court has no power to make or repeal laws, we must decide the law as we find it to exist. If a change in this rule be desired, the legislature must be looked to, and not the courts, to make it.

Let the judgment be affirmed.

The other judges concur, except judge Sherwood, who dissents.

Dissenting opinion of Judge SHERWOOD.

Polston brought his suit in the Audrain Circuit Court against See, for certain slanderous words, alleged to have been spoken and published by the defendant, charging the plaintiff with the crime of theft.

The answer of the defendant denied the...