Reding v. Reding

• Decision Date: 02 May 1910
• Citation: 127 S.W. 936,143 Mo. App. 659
• Parties: REDING v. REDING.
• Court: Missouri Court of Appeals

127 S.W. 936

143 Mo. App. 659

REDING v. REDING.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. LIBEL AND SLANDER (§ 123)—SUFFICIENCY OF EVIDENCE—QUESTION FOR JURY.

Evidence in a suit for slander held sufficient to carry the case to the jury, and to sustain a verdict for actual and exemplary damages.

2. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS —FALSITY OF STATEMENT.

In a suit for slander, plaintiff alleged that defendant had called her a "whore," and defendant's answer was a general denial, and that plaintiff was a whore. Held, that an instruction that, if defendant made the statement alleged in the hearing of one or more persons, it was actionable and slanderous, and it would be presumed to have been made falsely and maliciously, and the jury should find in favor of plaintiff for compensatory damages, was erroneous, as excluding the defense of justification and the evidence offered in support thereof.

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

An instruction that malice does not consist alone in personal spite or ill will, but exists whenever a wrongful act is intentionally done without just cause, and that defendant's motive in speaking the word charged can only be considered as affecting the punitive damages, and that, even though the jury believe from the evidence that the alleged slander was true, that would not constitute justification, ignores the defense that the statement was true.

4. LIBEL AND SLANDER (§ 124) — INSTRUCTIONS — PRESUMPTION AS TO CHASTITY.

An instruction that the law presumes the reputation and character of a woman for chastity to be good, and it devolves upon defendant to overcome that presumption, and to prove by the greater weight of credible testimony the truth of the statement, as he justifies by charging the truth thereof, is erroneous, where there is positive evidence on that issue.

5. LIBEL AND SLANDER (§ 116) — FUTURE DAMAGES.

Where considerable time elapses between the date when defendant in a suit for slander charged plaintiff with being a "whore" and the date of the trial, future damages are not recoverable.

6. WITNESSES (§ 380) — IMPEACHMENT — INCONSISTENT STATEMENTS—WITNESSES WHO MAY BE IMPEACHED.

Defendant in a suit for slander by calling plaintiff a "whore" defended on the ground that the statement was true. A witness called by defendant was asked if he had seen plaintiff and a person named having intercourse, and he denied having seen them, and gave no testimony in behalf of defendant. On cross-examination it was shown that he had made an affidavit that he had seen plaintiff having intercourse, but he stated that, if he made such an affidavit, he made it when he was drunk. He was also asked on cross-examination if he had not stated that defendant offered him money to come from another state and testify, and he denied having made the statement. Held, that the witness became plaintiff's witness, and it was error to allow plaintiff to show that he had made the statement as to defendant's offer.

7. WITNESSES (§ 268)—CROSS-EXAMINATION.

Under Laws 1905, p. 307 (Ann. St. 1906, § 4655a), authorizing a party against whom a witness has been called and given some testimony to cross-examine him on the entire case, if a witness has been called and gives any testimony, no matter how formal or unimportant, the other party has the right to cross-examine him on the whole case, and does not thereby make him his witness.

8. LIBEL AND SLANDER (§ 124)—APPEAL AND ERROR (§ 1067)—INSTRUCTIONS—DAMAGES.

Plaintiff, who sued her father-in-law for calling her a "whore," was deserted by her husband, and her petition was sufficient to authorize recovery of damages for such desertion. The husband procured many of the affidavits by which his father attempted to prove the truth of his statement. Before the son's marriage, he had been prosecuted for seducing plaintiff, and with knowledge that, if his father's statement was true, he had committed no offense, he voluntarily entered a plea of guilty, but there was no evidence that the son ever heard his father make the statement before he abandoned plaintiff. Counsel for plaintiff in his opening statement charged that the separation was due to defendant's conduct in slandering plaintiff, and the statement was permitted to stand over defendant's objection. Evidence was offered that plaintiff and her husband were not living together. Held, that it was error not to charge as requested by defendant that "plaintiff is not entitled in this action to recover any damages by reason of any separation that may have taken place between herself and husband," and the error was prejudicial, as the court cannot say what part of the award for actual damages was based on that ground.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Nellie B. Reding against John B. Reding. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Benton & Ruark, Clay & Davis, and A. D. Bennett, for appellant. T. M. Saxton, George Hubbert, and O. L. Cravens, for respondent.

GRAY, J.

This cause is here on appeal by the defendant from a judgment of the circuit court of Newton county in favor of the plaintiff in the sum of $2,000, the result of the verdict of a jury in favor of the plaintiff for $1,000 actual and $1,000 punitive damages.

The defendant is the father-in-law of plaintiff, and this action was brought against him by her for slanderously calling her a "damned whore." The plaintiff pleads "that, by reason of said slander, she has suffered and will continue to suffer pain and anguish, and was thereby greatly damaged in her good name and repute, and thereby deprived of the comfort, aid, society, support, love, and assistance of her husband, who is the son of the defendant." The answer, in addition to a general denial, pleads the truth of the words; that they were uttered while plaintiff was prosecuting defendant's son for seduction; that while he was assisting in the defense of his son in said prosecution he was informed, orally and by affidavits of divers persons, that they had seen plaintiff in the act of sexual intercourse with other persons; and that defendant believed these statements to be true. It appears from the testimony that the defendant repeatedly charged the plaintiff as alleged in the petition.

The plaintiff resided in Newton county, and is the daughter of a blacksmith. Dixon Reding is the son of the defendant. The testimony in behalf of plaintiff shows that from the time plaintiff and Dixon were school children they were great friends, and he was the only sweetheart she ever had, that they were engaged to be married, and that he seduced her under his said promise of marriage, and a child was born to her as the result of the seduction. Young Reding refused to keep his promise to marry plaintiff, and she had him arrested on the charge of seduction. When the case was called for trial, he entered a plea of guilty, and received a sentence of five years in the penitentiary. Some arrangement was made between the families by which a parole was granted to young Reding, with the understanding that a marriage was to take place between him and plaintiff. It seems that some time after this agreement was entered into, and after he had married plaintiff, a full pardon was obtained for him from the Governor, and he then refused to longer live with the plaintiff and abandoned her. The defendant was very much opposed to the marriage, and declared that he was through with his son when he learned that he had married plaintiff. During the time the prosecution was pending, and while the defendant was assisting in the defense of his son, he repeatedly charged against plaintiff the words mentioned in the petition.

Without going into the testimony in detail, it may be said that the plaintiff introduced abundant testimony to sustain the allegations of her petition, and she also introduced many witnesses to prove that her reputation for virtue and chastity was good in the neighborhood in which she lived, and that nothing had ever been heard against her character except the disgrace growing out of her affair with the defendant's son. It may further be said that after Dixon had entered a plea of guilty the defendant continued to charge that the plaintiff was a whore. In behalf of the defendant witnesses were offered to prove the truth of the charge made against plaintiff by the defendant. We have carefully examined this testimony, and cannot say the jury was not justified in refusing to believe it. The plaintiff lived in the neighborhood from the time she was a young school girl until the time of the trial, so that practically all her life had been spent in that immediate neighborhood, and a large number of disinterested citizens who lived near her testified that her reputation for virtue and chastity was good. The testimony of the defendant's witnesses presented to the jury a story very much out of the ordinary. From the time she was 14 years of age, until about the time she had young Reding arrested, witnesses told of seeing her in the act of sexual intercourse with different persons. It seemed to be there was no effort made to keep the matter a secret, and that on the school ground at recess, when the other pupils were playing about, and in the open fields when they were gathering strawberries, and at other times when persons were in plain sight, these things occurred. They may have occurred in the manner detailed by the witnesses, but, as we have said, it is not strange the jury did not believe them. The defendant admitted that he sent his wife to secure an affidavit from a young girl to the effect that she had seen the plaintiff and another boy in the act of sexual intercourse on the schoolhouse ground. The wife of the defendant and his son took the girl to Joplin, where she appeared before a notary public and it is claimed made the affidavit. This affidavit was seen and read by the defendant during the time...