Sutton v. Smith

• Decision Date: 31 January 1850
• Citation: 13 Mo. 120
• Parties: SUTTON v. SMITH.
• Court: Missouri Supreme Court

13 Mo. 120

SUTTON

v.SMITH.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO CLAY CIRCUIT COURT.

The plaintiff in error, Sarah Sutton, instituted her action of slander in the Clay Circuit Court against the defendant, Smith, in the month of September, 1846. The declaration contained four courts. In the 1st, 2nd and 3rd counts, she charges that the defendant, on the 10th day of June, 1846, at Clay county, accused her with having stolen his corn; and in the 4th count, that he accused her with having stolen the corn of him, the said defendant and one John Ogden, laying the damages at $5,000. To this declaration, the defendant, at the return term of the writ, filed the plea of not guilty and of justification.

In the plea of justification, the defendant alleges that he had a right to speak and publish the words alleged to have been spoken by him, because the plaintiff did in fact, feloniously steal, take and carry away, certain goods and chattels, that is to say, one bushel of corn, the property of him and the said John Odgen, on the 1st day of May, 1846, at said county of Clay, being of the value of one dollar. To this plea of justification the plaintiff did not reply.

Afterwards, at the February term, 1847, of the court, the case being called for trial, the defendant, by leave of the court withdrew the plea of not guilty, and thereupon a jury was sworn to try the cause, upon which being done, the defendant filed his motion to non pros. the plaintiff, because she had not replied to nor taken issue upon the plea of justification. This motion was sustained by the court, and plaintiff non prossed. Whereupon the plaintiff then moved to set the judgment of non pros. aside, and to reinstate the cause upon the docket, upon the ground, as alleged in the motion, that the plea of the defendant was but to one count of the declaration, and that there were other counts therein to which the defendant had not plead, and that therefore she was entitled to a judgment by nil dicit.

This motion of the plaintiff to reinstate the cause upon the docket, was accompanied by her affidavit, in which she states, that she has merits in the action, and that upon the trial of the cause she will prove that the imputations of felony is said declaration, in manner and form as charged, were made by said Smith, and they were wholly false.

The court sustained this motion, and reinstated the cause upon the docket, and overruled the motion of plaintiff for judgment by nil dicit, and granted the plaintiff leave to reply to the said plea, and also granted the defendant leave to reinstate upon the docket his said plea of not guilty that had been withdrawn; which being done, and the replication filed, the court thereupon adjudged that the plaintiff should pay all the costs up to that time.

The plaintiff, in her replication, denies that she stole any of the goods, chattels, or corn, of the said John Smith and John Ogden, as in the said second plea is falsely alleged, and that the said defendant, Smith, at the time when, &c., as mentioned in the declaration, of his own wrong, and without the cause by him alleged in the introductory part of the plea, did commit the said several grievances in the introductory part of that plea mentioned, and as in her said declaration set forth.

The defendant excepted to the opinion of the court in setting aside the judgment of non pros., and reinstating the cause upon the docket; and also to the opinion of the court in permitting the plaintiff to reply to said replication. The case being thus at issue, the same came on to be tried at the August term of the court in the year 1848, whereupon a jury was sworn, and the plaintiff, to prove the issues on her part, gave certain evidence, and the defendant evidence to sustain his defense. The evidence being closed, the plaintiff and defendant each asked for instructions. The jury found their verdict for the defendant upon the plea of not guilty, and for the plaintiff upon the plea of justification. Motions for a new trial and in arrest were made and overruled, and the case brought to this court by writ of error.

ABELL & STRINGFELLOW, for Plaintiff. 1. Although plaintiff had a verdict on the plea of justification, she may yet complain of the errors of the court in giving and refusing instructions asked with immediate reference to that plea. Those errors, under the peculiar circumstances of this case, manifestly misled the jury and tended to induce the verdict found by them. The conduct of the plaintiff, which is alleged to have induced defendant to believe the charge made by him is no justification. It will not, even as admitted by plaintiff's instruction, which was refused, necessarily go in mitigation. It is no mitigation, where, as in this case, the defendant, advised that the charges are false, reiterates it in a plea of justification. There is no pretense of authority or principle for holding such facts a complete defense, a legal excuse. 2 Starkie on Ev. 643; 2 Greenl. 345, §§ 426, 343, 228, 229; 3 Mass. R. 546; 1 Pick. 1; 5 Pick. 296; 2 Pick. 113. The plea of justification only extended to 4th count. 11 Johns. 38; 13 Wend. 9. 2. The costs at the February term, 1848, should have been taxed against defendant. Rev. Stat. p. 816, § 3.

HAYDEN, for Defendant. 1. I insist that the Circuit Court did not err in giving to the jury, upon the trial of the cause, the instructions complained of by the plaintiff. These instructions assert and maintain, very correctly, as I conceive, the principles that upon the trial of the issue, taken upon the plea of not guilty, pleaded by the defendant to the action, the jury should be satisfied from the evidence that the defendant was guilty of speaking and publishing the words alleged in the declaration, falsely and maliciously, in order to warrant them in finding their verdict for the plaintiff. That the wrong and injury complained of should appear to have been committed by the defendant as charged, and not at the request of the plaintiff, nor invited nor procured by her contrivance, nor with her will and consent, for the purpose of the action, upon the ground that she has no right to complain of that as an injury, which she has willingly occasioned. See 2 Starkie's Ev., part 4th, p. 876 and note referred to; 2 Greenl. §§ 421, 341; Starkie on Slander, 169 and 538, bottom paging; 3 Bos. & Pul. 592, 593; 5 Esp. R. 15; 1 Term R. 112. 2nd. I hold that the plaintiff has no more right to demand compensation for an injury, which she has by her acts and contrivance procured to be inflicted upon her reputation (if she have any), than she would have if she had requested the same to have been done by word. Or, in other words, if she has caused the injury to be done of which she complains, it matters not what means she adopted, nor what agent she employed to effect it. By such conduct she becomes the inserter of her own rights, and is bound by law to submit to the loss sustained, if any. There was very satisfactory evidence, to my mind, given to the jury, that if defendant did speak the words charged in the declaration, they were not spoken maliciously, but, on the contrary, they were spoken honestly, under a well founded conviction of mind that they were true, and that they were spoken with the consent, by the contrivance, and...