Yager v. Bruce

Citation116 Mo. App. 473,93 S.W. 307
PartiesYAGER v. BRUCE.
Decision Date30 January 1906
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by James W. Yager against Frank Bruce. From a judgment in favor of plaintiff, defendant appeals. Reversed.

P. H. Cullen and D. A. Murphy, for appellant. Geo. Robertson and E. S. Gantt, for respondent.

GOODE, J.

Plaintiff obtained judgment against the defendant for a slander on a verdict awarding $200 actual damages and $800 punitive. The slander alleged was that defendant, on April 5, 1904, in speaking of the plaintiff, who was at that time seeking the Democratic nomination for assessor of Audrain county, said that any man who voted for plaintiff would vote for a "thief," and, further, that plaintiff was a "thief"; a profane epithet being prefixed to the word. Besides denying that he spoke the slanderous words, defendant justified by averring their truth, and in support of the averment charged plaintiff with two specific thefts; namely, stealing a wrench of the value of $1 from A. J. McCully in 1893, and stealing $5 in money on January 11, 1896, from the Mexico Savings Bank, a corporation engaged in banking in the city of Mexico, Mo. Following the general denial and the plea of justification, the answer contained a plea in mitigation of damages, of which the purport was that whatever words defendant may have uttered concerning plaintiff, were spoken in good faith, without actual malice and related to acts and conduct of plaintiff generally rumored and believed to be true by the persons to whom the defendant spoke and by the inhabitants of the neighborhood where plaintiff lived; that, at the time laid as the date of the utterance, plaintiff's reputation for honesty and fair dealing was bad in the community where he resided, and the alleged slanderous charge was believed by the public to be true before defendant is said to have uttered it; that the person to whom defendant is said to have spoken, had previously told the defendant and many other persons that plaintiff was dishonest and had been guilty of theft and other offenses against the law; that whatever defendant may have stated was a repetition of part of what had long before been imparted to him concerning the plaintiff, and this fact was well known to the person to whom defendant is said to have uttered the charge. A replication was filed to put in issue the special defenses pleaded in the answer.

The person to whom the defendant spoke the slander laid in the petition, if he spoke it at all, was Thomas J. Gatewood, an elderly man living in the country neighborhood where plaintiff and defendant resided. Gatewood and his wife both swore that on April 5, 1904, defendant said to Gatewood that plaintiff was a thief; but the defendant and his brother, who was present at the time of the conversation, testified unequivocally to the contrary. The circumstances were these: All the parties to the conversation had attended a school meeting at the Gatewood schoolhouse in Audrain county. On their return home, defendant's brother, Porter Bruce, and Gatewood traveled together until they reached Gatewood's home, which lay between the schoolhouse and the homes of the Bruces. As we gather from the testimony, some one had started a rumor that Gatewood had agreed with Yager, for a valuable consideration, to vote for the latter in the primary. A conversation began at the schoolhouse between Porter Bruce and Gatewood about Yager's candidacy, in the course of which Gatewood denied the selling of his vote, and attempted to explain the transaction which gave rise to the charge. Porter Bruce opened the interview by asking Gatewood if he was going to vote for Yager, and said the latter was a thief and a boodler. The epithet "boodler" had reference to the supposed buying of Gatewood's vote and led to the explanation. The conversation continued in a desultory way as they went to their homes; but the defendant, Frank Bruce, appears to have taken little or no part in it. When the parties reached Gatewood's residence, the latter turned into his yard, and the Bruces proceeded towards their homes. They had gone about 50 yards on their way when the defendant turned his horse around in the road, so that he could look toward Gatewood, and said: "Hello! I can prove that you sold your vote for $12. If you vote for Jim Yager, you vote for a damned thief." Two or three other witnesses swore defendant made the same accusation against plaintiff to them. The conversation that occurred between the defendant, his brother, and Gatewood, according to the testimony of the two brothers, related to the fitness of Yager for the office of assessor and to the characters of other aspirants for county offices. Frank and Porter Bruce swore the former took no substantial part in the discussion, which was between Porter Bruce and Gatewood. They both swore positively that Frank Bruce applied no epithet to Yager and cast no aspersion on his character. Their version of the remark about Yager being a thief is that Gatewood himself, in assigning reasons why he intended to support Yager, said the latter was no thief, as some persons accused him of being.

An exception to the testimony of John F. Baker was preserved. The objection urged against the reception of this testimony was that it showed the remark Baker swore defendant made about plaintiff occurred during an attempt to compromise the case at bar. What was proved on the voir dire of Baker was that he and a man named Turley conceived the notion that they could get the litigation settled, and, with this object in view, approached defendant on the subject. They acted voluntarily, having said nothing to Yager about their intention to try to induce a compromise. They wished to procure from Bruce a proposition looking to a settlement and submit it to Yager. Bruce understood that Baker and Turley were endeavoring to bring about an adjustment, but was not told whether or not Yager had authorized them to mediate. Bruce said he had a case which he was justified in carrying through, and that Yager was a thief and he could prove it, or was going to prove it. William Wilfley was permitted, over the objection of the defendant, to testify that he had lived near plaintiff all his life and had dealings with him, and all the dealings had been straight and satisfactory. In the cross-examination of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT