Trimble v. Foster

• Decision Date: 31 October 1885
• Citation: 87 Mo. 49
• Parties: TRIMBLE, Appellant, v. FOSTER.
• Court: Missouri Supreme Court

87 Mo. 49

TRIMBLE, Appellant,

v.FOSTER.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Reed & Hall and W. T. McCanne for appellant.

(1) Defendant's answer is insufficient, uncertain, inconsistent and indefinite, and plaintiff's motion to strike out parts of it should have been sustained. Defendant neither avers nor denies the truth of the charges so as to make an issue of that fact before the jury. The trial court should have required the pleadings to go to an extent to secure pleadings based upon them that would inform the jury under the evidence whether the plaintiff in a slander suit is guilty or innocent of the charge. 2 Greenleaf on Evid., sec. 419. (2) The court erred in instructing the jury to take into consideration the character and standing of both plaintiff and defendant, after rejecting evidence upon that point. Buckley v. Knapp, 48 Mo. 162; Polston v. See, 54 Mo. 295. (3) The jury were misled by the instructions given for defendant. The second is misleading and lacks definition in its wording and meaning. Defendant's fourth instruction is erroneous. Violence of temper is an aggravation, and not an excuse, in slander. Pasley v. Kemp, 22 Mo. 410. (4) It was error to refuse plaintiff's first instruction. Hall v. Adkins, 59 Mo. 148.Hollis & Wiley for respondent.

(1) Defendant admitted in his answer the speaking of the words charged; denied that the same were maliciously spoken; and pleaded his belief in the words spoken. And also set up the facts and circumstances relied upon to constitute the stealing and a reference by him to such facts and circumstances at the time of speaking the words. The same manner of answering was held good and sufficient in Hall v. Adkins, 59 Mo. 144. (2) The questions in relation to the character of the plaintiff and of the defendant, as propounded by plaintiff to his own witness, Singleton, were properly refused. ( a) They were directly leading. ( b) The law presumed the plaintiff's character and the defendant's character good, and neither party, on the issue made by the pleadings in this case, was attacking the previous character of the other. Hence, the questions were irrelevant even had they been in proper form. (3) This court will not pass upon the weight of the evidence in cases at law, unless there are circumstances clearly showing bias or prejudice, such as to make the verdict unconscionable.

HENRY, C. J.

This is an action of slander, in which the words alleged to have been spoken by defendant of the plaintiff are the following: “He is a thief; he is a d____d thief.”

In his answer, defendant admitted the speaking of the words, but denied that they were spoken falsely and maliciously for the purpose of slandering the plaintiff, but because he believed that plaintiff had been guilty of stealing his property. For a more specific answer, he states that he purchased of plaintiff a farm, in Randolph county, and plaintiff delivered to him possession thereof, and prior to the speaking of said words, “the plaintiff unlawfully, and without the knowledge or consent of defendant, entered upon said land, and, by force, took and carried away and converted to his own use, fixtures belonging to said land, and the property of defendant and then in defendant's possession, to-wit: one sidewalk, running from the dwelling house on said premises to the privy; also, a brick mound, built up in the front yard of said premises for flowers; also, two large grain bins or cribs, which were located in, and a part of, the barn on said premises, used for holding grain raised upon said farm; also, a lot of manure and other things belonging to defendant by reason of the purchase aforesaid and of great value.”

To this plaintiff filed a replication, denying the facts alleged. On trial of the cause there was a verdict and judgment for defendant, from which plaintiff has appealed.

The answer is ingeniously framed, and it is difficult to say exactly what are the issues it presents. It is not a plea of justification. It admits the speaking of the words, but does not allege their truth, but, as we construe it, admits that they were not true, and states, as an excuse for uttering them, certain facts which led defendant to believe that they were true when uttered. It is not a plea of justification, but only in...