Yager v. Bruce
| Decision Date | 30 January 1906 |
| Citation | 93 S.W. 307,116 Mo.App. 473 |
| Parties | YAGER, Respondent, v. BRUCE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
P. H Cullen and D. A. Murphy for appellant.
(1) It was error to instruct the jury that they might take into consideration the falsity of the defense as an aggravation of damages. Browning v. Powers (Mo.), 38 S.W. 943; Kansas City Star Co. v. Carlisle, 108 F. 344, 47 C C. A. 384. Upton v. Hume, 34 Ore. 420; Upton v Hume, 21 L. R. A. 493; Sloan v. Petrie, 15 Ill. 425; Kennedy v. Houghtaling, 37 Mich. 41; Ward v. Dicko, 47 Conn. 300, 36 Am. Rep. 75; Odgers, Libel & Slanders, sec. 274. Bliss on Code Pleading (2 Ed.), sec. 360; 18 Am. & Eng. Ency. of L. (2 Ed.), p. 1104; Cruikshank v. Gordon, (N. Y.), 24 N.E. 451; Mark v. Press Pub. Co. (N. Y.), 31 N.E. 918; Harbison v. Snook, 41 Ill. 147; Albertz v. Albertz, 78 Wis. 72, 10 L. R. A. 585; Cole v. Holliday, 4 Mo.App. 94; Broyhill v. Norton, 175 Mo. 204; Byrkett v. Monohon, 7 Blackf. (Ind.), 83; Chubb v. Flanagan, 66 Car. and P., 431; Swails v. Butcher, 2 Ind. 84; Shank v. Crove, 1 Ind. 170. (2) The words must be proved as charged. If the allegations and proof do not correspond there is a failure of proof and the plaintiff is fated to failure. Berry v. Dryden, 7 Mo. 324; Birch v. Benton, 26 Mo. 161; Watson v. Musick, 2 Mo. 25; Wood v. Hillbish, 23 Mo.App. 398; Christal v. Craig, 80 Mo. 374; Street v. Bushnell, 24 Mo. 329. (3) It is a wellsettled rule that the testimony as to character must be general and not specific. The plaintiff revoked this rule and precluded evidence of specific acts of delinquency on plaintiff's part but broke it for his own benefit and forced witnesses to testify as to specific acts and dealings of plaintiff which redounded to his credit. Moulton v. State, 88 Ala. 116, 6 L. R. A. 301; Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494; State v. Gordon, 3 Iowa 410; State v. McGee, 81 Iowa 17, 46 N.W. 764; State v. McDonald, 57 Kas. 537; Keomly v. State, 68 Miss. 233; Hussey v. States, Ala. 121. (4) Admissions made pending compromise is not admissible, hence eror was committed in overruling objecions to witness Baker's testimony. Elliott on Ev., sec. 240; Columbia etc. v. Ins. Co., 59 Mo.App. 205; Herman v. Railway, 77 Mo.App. 377. (5) We suggest that the doctrine of "qualified privilege" is involved in this case. The utterance complained of by the respondent is a qualifiedly privileged communication and the plaintiff must prove express malice before he can recover punitive damages. On the general law of this subject this court has recently added a very valuable contribution. Kersting v. White, 107 Mo.App. 265, 80 S.W. 730; Finley v. Steele, 159 Mo. 299, 60 S.W. 108; Bogs v. Hunt, 60 Iowa 251, 14 N.W. 785; Mott v. Dawson, 46 Iowa 533; State v. Balch, 31 Kansas 465; Wagner v. Scott, 164 Mo. 289 63 S.W. 1107.
George Robertson for respondent.
(1) There is no variance between the words charged and the proof. Birch v. Benton, 26 Mo. 153; Estes v. Antrobus, 1 Mo. 198; Cooper v. Marlow, 3 Mo. 189; Noeninger v. Voght, 88 Mo. 589; Pennington v. Meeks, 46 Mo. 217; Lewis v. McDaniel, 82 Mo. 577. (2) The court did not err in admitting the testimony of John F. Baker as to the conversation had with Bruce. It was in no sense an effort to compromise, Baker represented nobody but himself in the matter, he only undertook to talk to Bruce of making some disposition of the case. That conversation does not bring the case within the rule announced in Herman v. Railroad, 77 Mo. 377; Lanius v. Druggist, Pub. Co., 22 Mo.App. 12. (3) Appellant under his point 8 complains that the witness Sharp was not allowed to state his conversation with the defendant at the time Sharp claims he informed defendant of the five dollar bank transaction. This conversation had between Sharp and defendant was not admissible. Buckley v. Knapp, 48 Mo. 152; Newell on Slander and Libel, 887, and authorities there cited. Jones v. Murry, 167 Mo. 25, 48, 66 S.W. 981. (4) The plea of justification, if persisted in but not proven, will enhance the damages. Newell on Slander and Libel (2 Ed.), 883 and authorities cited under note 5. Warwick v. Foulks, 12 M. & W. 508; Wilson v. Robinson, 7 Q. B. 68; Simpson v. Robinson, 12 Q. B. 511; Robinson v. Drummond, 24 Ala. 174; Pool v. Devers, 30 Ala. 672; Dowling v. Brown, 3 Col. 571; Henderson v. Fox, 83 Ga. 233; Jackson v. Stetson, 15 Mass. 48; Gorman v. Sutton, 32 Pa. 247; Burkhalter v. Coward, 16 S.C. 435; Wilson v. Nations, 5 Yerg. 211; Faucitt v. Booth, 31 Up. Can. Q. B. 263; Cavanaugh v. Austin, 42 Vt. 576; Marker v. Dun, 68 Ia. 720.
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 $ 1.00 from A. J. McCully in 1893 and stealing $ 5.00 in money on January 11, 1896 from the Mexico Savings Bank, a corporation engaged in banking in the city of Mexico, Missouri. 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, someone 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 toward their home. They had gone about fifty yards on their way, when the defendant turned his horse around in the road, so that he could look toward Gatewood and said Two or three other witnesses swore defendant made the same accusation against plaintiff to them. The conversation that occurred between defendant, his brother and Gatewood, according to the testimony of the two brothers related to the fitness of Yager for the officer 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...
To continue reading
Request your trial