Weaver v. Hendrick

• Decision Date: 31 July 1860
• Citation: 30 Mo. 502
• Parties: WEAVER, Defendant in Error, v. HENDRICK, Plaintiff in Error.
• Court: Missouri Supreme Court

30 Mo. 502

WEAVER, Defendant in Error,

v.HENDRICK, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1860.

1. In ordinary actions for slander, where the words spoken are actionable in themselves, malice is implied; no express averment is, in such case, necessary to maintain the action.

2. Where, however, the words are spoken in the discharge of some public or private duty, or in the exercise of some right, express malice must be shown.

3. Any circumstances disproving, or tending to disprove, malice are admissible in mitigation of damages.

4. Where illegal testimony is introduced without objection, and the party introducing the same asks an instruction based upon it, the court may properly refuse to grant it.

Error to Greene Circuit Court.

This was an action to recover damages for slanderous words spoken by the defendant of the plaintiff. The words were charged in the petition to have been spoken falsely and maliciously. The words charged and the evidence adduced in the cause are set forth in the opinion of the court below. Testimony was adduced by defendant to show the general bad character of plaintiff. In the deposition of one Bagley, which was read without objection from the plaintiff, was the following passage: “His (Weaver's) general character is bad. I know it in fact from what he told me. He said there was a man who planted some sweet potatoes, and he, Weaver, grabbled them up and took them home and planted them, and smoothed the hill he took them from. He did this in the night.”

The court, at the instance of the plaintiff, gave the following instructions: “1. If the jury believe from the evidence that defendant Hendrick spoke and published of the plaintiff, Adam Weaver, [that he] stole corn, or that Adam Weaver had stolen his corn, and that the speaking of said words was before the commencement of this suit, they must find for the plaintiff. 2. If the jury believe defendant published and spoke said words of plaintiff, the words being actionable in themselves, the law implies malice, and it is not necessary that the plaintiff should prove express malice. 3. If the jury find for plaintiff, they can give any amount of damages not exceeding five thousand dollars. 4. The speaking the words in the presence of one or more persons is a publication.”

The court refused the following instructions asked by defendant: “1. Unless the jury believe from the evidence that the defendant spoke the words laid in the petition of and concerning plaintiff maliciously, the jury ought to find defendant not guilty. 2. Although it is a general rule that malice is inferred from the speaking of the words, yet if the jury believe, from the evidence of plaintiff's witness, and from the manner and appearance of the defendant when he spoke the words, that he was not actuated by malicious motives, the jury ought to find the defendant not guilty. 3. If the jury believe from the evidence that defendant spoke the words and that maliciously, they ought to take into consideration his manner of speaking the words in mitigation of damages. 4. If the jury believe from the evidence that defendant had good reason to suspect plaintiff of being a thief from his, plaintiff's, own admission of taking potatoes out of the hills of another man, and carrying them home and planting them, that circumstance may be taken into consideration in mitigation of damages.”

Hendrick, for plaintiff in error.

I. The question of malice should have been left to the jury. There was a conflict of testimony as to the manner of speaking the words. The instructions given took the question of malice away from the jury. Although malice is to be inferred from the speaking of the words generally, yet it is a fact for the consideration of the jury; and whether in this particular case and under all the circumstances in proof malice existed or not, it was the province of the jury to determine. The instructions assumed that the inference of malice was conclusive from the speaking of the words. The first three instructions asked by defendant involved the question of malice and should have been given. The fourth instruction was improperly refused. Although the testimony of Bagley about the potatoes was objectionable strictly under the pleadings, yet being offered in mitigation and not objected to, it ought not to have been withdrawn from the jury. The refusal of the instruction was in effect the exclusion of the testimony. The plaintiff had precluded himself from raising the objection. (21 Mo. 243.) The damages were excessive.

Waddell, Edwards & Ewing, for defendant in error.

I. The instructions given were correct. The words being actionable in themselves, malice was implied in law. There was no evidence tending to show a want of malice. (2 Greenl. Ev. § 418; 1 Mo. 140; 2 Saund. Pl. & Ev. 949; 1 Starkie on Sland. 214.) The court did right in refusing the instructions asked by defendant. The law on the subject of malice was fully given to the jury. The fourth instruction was properly refused. Defendant had all the benefit he was entitled to of the bad character of plaintiff he was able to prove. Bagley's testimony was inadmissible. Plaintiff was not precluded from objecting to an instruction based upon such testimony because he permitted it to be read without objection. The refusal of the instruction was not an exclusion of the testimony. The damages were not excessive.

EWING, Judge, delivered the opinion of the court.

This was an action of slander upon an imputation by the defendant that the plaintiff had committed larceny in stealing defendant's corn. The answer denied the speaking of the words, and, upon a trial, there was a verdict and judgment for three thousand dollars for plaintiff.

The questions presented by the bill of exceptions arise upon the instructions to the jury. On behalf of the plaintiff the jury were charged, in substance, that upon proof of the speaking and publishing of the words set out in the petition before the commencement of the suit, they should find for the plaintiff; and that the words being actionable per se the law implies malice, and it is not necessary that express malice should be proved.

The instructions asked by the defendant--which were refused--submitted the question of malice to the jury, and declared that if the words were not spoken maliciously the jury should acquit.

Under the pleadings and evidence in this case we think the law was properly declared in the instructions given by the court, and that there was nothing in the case to warrant the instructions asked by the defendant. The rule seems to be well settled that in ordinary actions for slander, where the words are...