Reding v. Reding
| Decision Date | 02 May 1910 |
| Parties | NELLIE B. REDING, Respondent, v. JOHN B. REDING, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Clay & Davis and Benton & Ruark for appellant.
(1) Instruction No. 1 is erroneous in that it directs the jury that the law presumes the falsity of defendant's statement; and instructions 6 and 10 are subject to the same objection. Ham v. Barret, 28 Mo. 388; Erhart v Dietrich, 118 Mo. 426; Sackberger v. Grand Lodge, 73 Mo.App. 38; Winter v. Lodge of K. P., 96 Mo.App. 1; Lynch v. Railroad, 112 Mo. 433; Moberly v. Railroad, 98 Mo. 183; Burkholder v Henderson, 78 Mo.App. 295; Haycraft v. Grigsby, 88 Mo.App. 354; Brownlow v. Woolard, 61 Mo.App. 124; Bragg v. Railroad, 192 Mo. 354; Adams v. Machine Co., 110 Mo.App. 367; Weller v. Railroad, 120 Mo. 635; Payne v. Railroad, 129 Mo. 405; Morton v. Heidorn, 135 Mo. 616; Schefers v. Railroad, 126 Mo. 665; Myers v. Kansas City, 108 Mo. 480; Clark v. Hammerle, 27 Mo. 55. (2) Instruction No. 1 is also erroneous in that it excludes the defense of the truth of the words spoken. It directs the jury to find for the plaintiff if defendant spoke the words charged, a matter that was undisputed. Rudd v. Fire Ins. Co., 120 Mo.App. 1; Stewart v. Andes, 110 Mo.App. 243; Carder v. Primm, 60 Mo.App. 423; Hohstadt v Daggs, 50 Mo.App. 240; Land & Lumber Co. v. Moss, 87 Mo.App. 167; Kelley v. Railroad, 105 Mo.App. 365; Toncrey v. Railroad, 129 Mo.App. 596; Percell v. Railroad, 126 Mo.App. 43; Boothe v. Loy, 83 Mo.App. 601; State v. Lentz, 184 Mo. 223. (3) It was error for the court to permit the plaintiff to impeach the witness, W. E. Tanner, by proving a variant statement not referred to in his examination in chief and only brought out in cross-examination. As to such new matter the plaintiff made the witness her own. Anderson v. Railroad, 161 Mo. 411; State ex rel. v. Branch, 151 Mo. 622; Ayers v. Railroad, 190 Mo. 228; Hubner v. Railroad, 79 N.Y.S. 153, 69 N.E. 1124; U. S. Brewing Co. v. Ruddy, 67 N.E. 799; Sitler v. Greeg, 90 N.Y. 686; Williams v. Culver, 39 Ore. 337, 64 P. 763; Welch v. State, 39 Tex. 413, 46 S.W. 812; Bailey v. Railway, 32 Wash. 640, 73 P. 679. (4) Instruction No. 8 is erroneous in allowing plaintiff to recover for probable future mental suffering. Halley v. Light Co., 115 Mo.App. 652; Wilkerson v. Street Railway, 126 Mo.App. 617; O'Keefe v. Railroad, 124 Mo.App. 625; Halstead v. Nelson, 24 Hun 395; Bradley v. Cramer, 66 Wis. 297, 28 N.W. 372.
T. M. Saxton, George Hubbert and O. L. Cravens for respondent.
(1) It is undoubtedly true that the words are in themselves actionable. That they are presumed to be false is too well settled in this State to overturn that doctrine in libel and slander suits. Nicholson v. Rogers, 129 Mo. 136; Israel v. Israel, 109 Mo.App. 371; Brown v. Wintsch, 110 Mo.App. 264; Broughton v. McGrew, 39 F. 672; Klein v. Laudman, 29 Mo. 259; Waddingham v. Waddingham, 21 Mo.App. 609; Kennedy v. Holliday, 25 Mo.App. 503; Fitzgerald v. Barker, 85 Mo. 1; Yager v. Bruce, 116 Mo.App. 487; Lewis v. McDaniel, 82 Mo. 577; Casey v. Aubuchan, 25 Mo.App. 91; Clements v. Maloney, 55 Mo. 352; Baldwin v. Fries, 46 Mo.App. 288; Buckley v. Knapp, 48 Mo. 161. (2) Actual damages are presumed to have resulted from the publication of a charge which is actionable per se. Rammell v. Otis, 60 Mo. 365; Price v. Whitely, 50 Mo. 439; Hudson v. Garner, 22 Mo. 423; Buckley v. Knapp, 48 Mo. 152; Noeninger v. Vogt, 88 Mo. 590. (3) Considered as a whole the charge was not unfair to the defendant, and that the charge must be considered as a whole and not by piecemeal is well settled in this State. No other practice, we submit, would be fair to either the trial courts or the litigants. Carpenter v. Hamilton, 185 Mo. 617; Mintner v. Bradstreet, 174 Mo. 444; Lewis v. Humphries, 64 Mo.App. 466; Liese v. Meyer, 143 Mo. 560; Cornovski v. Transit Co., 207 Mo. 263; Railroad v. Stewart, 201 Mo. 499; Flaherty v. Transit Co., 207 Mo. 318; Chambers v. Chester, 172 Mo. 461; Mitchell v. Bradstreet, 116 Mo. 247; Burdoin v. Trenton, 116 Mo. 358; Anderson v. Union Ter. Co., 161 Mo. 411; Bell v. Railway, 125 Mo.App. 660; Lange v. Railway, 208 Mo. 478. (4) The rule here has been at all times, with one or two exceptions, that where a party puts a witness on the stand and examines him only on trivial matters in chief, he may be cross-examined on the whole case. State v. Soper, 148 Mo. 217; Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; Railroad v. Silver, 56 Mo. 265; Jones v. Roberts, 37 Mo.App. 163. (5) The only objection made against instruction No. 8 is that it permits recovery for future mental suffering. This seems not well taken. Nicholson v. Rogers, 129 Mo. 136; Baldwin v. Bulware, 79 Mo.App. 5; Michael v. Matheis, 77 Mo.App. 556; 25 Cyc. 533; 18 A. and E. Ency. of Law (2 Ed.), 1083; Graybill v. DeYoung, 73 P. 1067; Farrand v. Aldrich, 48 N.W. 628; Boldt v. Budwig, 28 N.W. 280.
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 two thousand dollars, the result of the verdict of a jury in favor of the plaintiff for one thousand dollars actual, and one thousand dollars 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 parol was granted to young Reding, with the understanding that a marriage was to take place between him and plaintiff. It seems that sometime 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 fourteen 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...
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