Rombauer, P. J.
— This appeal is prosecuted by the defendant to reverse a judgment for $1,350, which the plaintiff recovered against him in an action for oral [152]*152slander. Two propositions are mainly relied on to secure such reversal. The first is that the court erred in charging the jury that they might award punitive damages without proof of express malice in the speaking of the slanderous words. The next is that the court against defendant’s objection permitted a large number of witnesses to testify to the plaintiff’s moral character and reputation for truth, when his character had not been directly assailed in either respect by- the defendant’s evidence.
The petition charges the slanderous words alleged to have been spoken as follows: “Ed. Fulkerson, I tell .you how those notes were settled, sir. I gave my note book to your brother, Lee Fulkerson, to take in his house to put a credit on a note for Harmon Yelton, and he stole those notes; he stole them, sir; he stole those notes.” The plaintiff offered evidence tending to prove the speaking by defendant of substantially the same words, imputing to him the crime of larceny. If the plaintiff’s evidence was believed by the jury, he was entitled according to the weight of authority and better reason to recover substantial damages without proof of special injury, as the words spoken imputed an indictable ' offense, and were actionable per se. Newell on Defamation, 841; Adams v. Smith, 58 Ill. 421. The defendant’s answer was a general denial, and was supported by his own evidence and that of others tending to show that he did not speak these words, nor substantially the same words, although he did speak words from which the inference of a charge of embezzlement on part of plaintiff of the notes in question might be drawn.
The facts appearing, briefly stated, are as follows: The plaintiff and defendant are both farmers in St. Charles county, the defendant being also engaged in loaning out money. Some time prior to the date of [153]*153the grievance complained of, the plaintiff was indebted to the defendant on two promissory notes. Some dispute arising between them as to whether these notes were paid or not, the plaintiff’s brother called upon the defendant in company of one Webb for the purpose of explaining how these notes were paid off, and the plaintiff gave evidence tending to show that the words charged to have been spoken were used by the defendant as part of the conversation taking place at that interview. No special injury resulting from the speaking of the words was shown. The plaintiff also gave evidence attempting to show in aggravation of damages a subsequent repetition of the slander by the defendant, which evidence the court admitted against the defendant’s objection, and subsequently refused to withdraw by instruction from the consideration of the jury, except in so far as it bore on the first utterance of the slander.
The defendant, after adducing evidence controverting the speaking of the words, called three witnesses and elicited from them evidence tending to show an attempt on plaintiff’s part to suborn them to commit perjury in testifying that the defendant had repeated the slanderous words to them. The plaintiff thereupon called a large number of witnesses, and against the objection of the defendant gave evidence by them touching his general reputation for honesty and truthfulness. The admission of this evidence is the second error complained of.
We conclude that the court committed error in admitting testimony in rebuttal tending to show plaintiff’s general reputation for honesty and truthfulness. The plaintiff’s general reputation for honesty had not been assailed by the defendant’s evidence, and, hence, there was no ground for any rebutting evidence on that score. The mere fact, that the charge contained in the [154]*154slanderous words spoken tends to affect the plaintiff’s reputation, is never ground for admitting testimony in its support. Odgers on Slander, 310; 2 Greenleaf on Evidence, sec. 419. On the other hand evidence of the general reputation of a witness for truth is never admissible on the ground that his evidence has been contradicted. If that were permissible, the trial of causes would have no end. Before this class of testimony can be admitted, the veracity of the witness must have been directly impeached in some manner. The utmost limit to which cases have extended the-rule, is to admit evidence of general reputation supporting the character and veracity of a witness, where-it is shown that he had on other occasions made statements contrary to his evidence. 1 Greenleaf on Evidence, sec. 469. ' The soundness of extending the rule even to that extent has been seriously questioned by high authority. Brown v. Mooers, 6 Gray, 451.
If, in the ease at bar, the defendant had attempted to show that part of the plaintiff’s witnesses were suborned, the plaintiff could have given evidence of the general reputation of such witnesses for honesty and veracity. But the fact, that the defendant gave evidence of an attempted subornation of certain witnesses by the plaintiff, did not entitle the plaintiff to call witnesses in support of his own moral character and veracity. Evidence of the fact of an attempted subornation is admissible as an admission by conduct that the party’s cause is an unrighteous-one. Moriarty v. Railroad, L. R. 5 Q. B. 314. It is. independent, and not impeaching, evidence in the sense-in which the latter term is used. The plaintiff could contradict this evidence in rebuttal, which he did, but. he could not fortify his contradiction by evidence as to his moral character and veracity. We think that the. [155]*155error in admitting this evidence, under the peculiar facts of this case, was prejudicial.
The court, upon the plaintiff’s request, gave the following instructions to the jury: “1. The court instructs the jury that the words alleged to have been spoken by the defendant against the plaintiff are such words, that the speaking of them falsely concerning another is presumed in law to damage the person of whom they are so falsely spoken.
“2. And the court further instructs the jury that, if they believe from the evidence that the defendant spoke the words set out in the petition, or substantially those words, concerning the plaintiff, then, under the law and the pleadings, said words are presumed to have been spoken falsely and maliciously without any further proof as to their falsity or malice, and the verdict must be for the plaintiff, and the jury must assess such an amount of damages in his behalf as they may deem proper under the view of the whole case to compensate him for the mortification and shame he may have suffered, and the disgrace and dishonor attempted to be cast upon him, and all damage done to his reputation, as well as to punish the defendant for his wrongful and malicious conduct, not to exceed, however, the amount claimed in the petition.
“3. Malice, as [it] is used in these instructions, means a wrongful act, done intentionally, without legal justification or excuse'; and the malice necessary for plaintiff to recover is to be inferred and presumed, if you believe from the evidence that the words complained of in the petition were spoken by the defendant of the plaintiff, or substantially the same words.”
The correctness of these instructions is challenged on the express ground that they warrant the jury to award punitive damages without any finding of express malice or aggravating circumstances. ■
Free access — add to your briefcase to read the full text and ask questions with AI
Rombauer, P. J.
— This appeal is prosecuted by the defendant to reverse a judgment for $1,350, which the plaintiff recovered against him in an action for oral [152]*152slander. Two propositions are mainly relied on to secure such reversal. The first is that the court erred in charging the jury that they might award punitive damages without proof of express malice in the speaking of the slanderous words. The next is that the court against defendant’s objection permitted a large number of witnesses to testify to the plaintiff’s moral character and reputation for truth, when his character had not been directly assailed in either respect by- the defendant’s evidence.
The petition charges the slanderous words alleged to have been spoken as follows: “Ed. Fulkerson, I tell .you how those notes were settled, sir. I gave my note book to your brother, Lee Fulkerson, to take in his house to put a credit on a note for Harmon Yelton, and he stole those notes; he stole them, sir; he stole those notes.” The plaintiff offered evidence tending to prove the speaking by defendant of substantially the same words, imputing to him the crime of larceny. If the plaintiff’s evidence was believed by the jury, he was entitled according to the weight of authority and better reason to recover substantial damages without proof of special injury, as the words spoken imputed an indictable ' offense, and were actionable per se. Newell on Defamation, 841; Adams v. Smith, 58 Ill. 421. The defendant’s answer was a general denial, and was supported by his own evidence and that of others tending to show that he did not speak these words, nor substantially the same words, although he did speak words from which the inference of a charge of embezzlement on part of plaintiff of the notes in question might be drawn.
The facts appearing, briefly stated, are as follows: The plaintiff and defendant are both farmers in St. Charles county, the defendant being also engaged in loaning out money. Some time prior to the date of [153]*153the grievance complained of, the plaintiff was indebted to the defendant on two promissory notes. Some dispute arising between them as to whether these notes were paid or not, the plaintiff’s brother called upon the defendant in company of one Webb for the purpose of explaining how these notes were paid off, and the plaintiff gave evidence tending to show that the words charged to have been spoken were used by the defendant as part of the conversation taking place at that interview. No special injury resulting from the speaking of the words was shown. The plaintiff also gave evidence attempting to show in aggravation of damages a subsequent repetition of the slander by the defendant, which evidence the court admitted against the defendant’s objection, and subsequently refused to withdraw by instruction from the consideration of the jury, except in so far as it bore on the first utterance of the slander.
The defendant, after adducing evidence controverting the speaking of the words, called three witnesses and elicited from them evidence tending to show an attempt on plaintiff’s part to suborn them to commit perjury in testifying that the defendant had repeated the slanderous words to them. The plaintiff thereupon called a large number of witnesses, and against the objection of the defendant gave evidence by them touching his general reputation for honesty and truthfulness. The admission of this evidence is the second error complained of.
We conclude that the court committed error in admitting testimony in rebuttal tending to show plaintiff’s general reputation for honesty and truthfulness. The plaintiff’s general reputation for honesty had not been assailed by the defendant’s evidence, and, hence, there was no ground for any rebutting evidence on that score. The mere fact, that the charge contained in the [154]*154slanderous words spoken tends to affect the plaintiff’s reputation, is never ground for admitting testimony in its support. Odgers on Slander, 310; 2 Greenleaf on Evidence, sec. 419. On the other hand evidence of the general reputation of a witness for truth is never admissible on the ground that his evidence has been contradicted. If that were permissible, the trial of causes would have no end. Before this class of testimony can be admitted, the veracity of the witness must have been directly impeached in some manner. The utmost limit to which cases have extended the-rule, is to admit evidence of general reputation supporting the character and veracity of a witness, where-it is shown that he had on other occasions made statements contrary to his evidence. 1 Greenleaf on Evidence, sec. 469. ' The soundness of extending the rule even to that extent has been seriously questioned by high authority. Brown v. Mooers, 6 Gray, 451.
If, in the ease at bar, the defendant had attempted to show that part of the plaintiff’s witnesses were suborned, the plaintiff could have given evidence of the general reputation of such witnesses for honesty and veracity. But the fact, that the defendant gave evidence of an attempted subornation of certain witnesses by the plaintiff, did not entitle the plaintiff to call witnesses in support of his own moral character and veracity. Evidence of the fact of an attempted subornation is admissible as an admission by conduct that the party’s cause is an unrighteous-one. Moriarty v. Railroad, L. R. 5 Q. B. 314. It is. independent, and not impeaching, evidence in the sense-in which the latter term is used. The plaintiff could contradict this evidence in rebuttal, which he did, but. he could not fortify his contradiction by evidence as to his moral character and veracity. We think that the. [155]*155error in admitting this evidence, under the peculiar facts of this case, was prejudicial.
The court, upon the plaintiff’s request, gave the following instructions to the jury: “1. The court instructs the jury that the words alleged to have been spoken by the defendant against the plaintiff are such words, that the speaking of them falsely concerning another is presumed in law to damage the person of whom they are so falsely spoken.
“2. And the court further instructs the jury that, if they believe from the evidence that the defendant spoke the words set out in the petition, or substantially those words, concerning the plaintiff, then, under the law and the pleadings, said words are presumed to have been spoken falsely and maliciously without any further proof as to their falsity or malice, and the verdict must be for the plaintiff, and the jury must assess such an amount of damages in his behalf as they may deem proper under the view of the whole case to compensate him for the mortification and shame he may have suffered, and the disgrace and dishonor attempted to be cast upon him, and all damage done to his reputation, as well as to punish the defendant for his wrongful and malicious conduct, not to exceed, however, the amount claimed in the petition.
“3. Malice, as [it] is used in these instructions, means a wrongful act, done intentionally, without legal justification or excuse'; and the malice necessary for plaintiff to recover is to be inferred and presumed, if you believe from the evidence that the words complained of in the petition were spoken by the defendant of the plaintiff, or substantially the same words.”
The correctness of these instructions is challenged on the express ground that they warrant the jury to award punitive damages without any finding of express malice or aggravating circumstances. ■
[156]*156Every wrongful act done intentionally without just cause or excuse implies malice in law; hence, an act may be done with legal malice, although done without any reprehensible motive. To say that punitive damages may be recovered in all cases where the law implies malice from the act done, is to announce not only that the criminal law may be administered in civil cases without its usual safeguards, but also that it may be applied to cases presenting no criminal element whatever. The last proposition has been denied by the more recent cases in this state, which uniformly hold that in actions of tort exemplary damages can only be recovered, when wantonness, recklessness, oppression or express malice is shown. Franz v. Hilterbrand, 45 Mo. 121, criticising Goetz v. Ambs, 27 Mo. 28; Fngle v. Jones, 51 Mo. 316; Morgan v. Durfee, 69 Mo. 469; Bruce v. Ullery, 79 Mo. 322, 327; Brown v. Plank Road Co., 89 Mo. 152; Clark v. Fairley, 30 Mo. App. 335, 339. Such being the general rule, the question arises whether there is anything in an action of slander which takes it out of the rule thus announced. It will not be contended that injuries to reputation are in themselves of a more aggravating nature in the eyes of the law than injuries to life; yet Morgan v. Durfee, supra, was a trespass resulting in the death of the plaintiff’s father. In the case of Nelson v. Wallace, 48 Mo. App. 193, we have answered this question in the negative, and stated that the action of slander forms no exception to the rule. It is difficult to conceive how it can on principle form an exception, and it has been almost uniformly decided outside of this state that it does not either on principle or authority. In Eviston v. Cramer, 57 Wis. 570, Cole, C. J., in an able opinion so decides the question; and to the same effect are Klewin v. Bauman, 53 Wis. 244; Templeton v. Graves, 59 Wis. 95; Rearick v. Wilcox, 81 Ill. 77; Casey v. [157]*157Hulgan, 21 N. E. Rep. (Ind.) 322; Sheik v. Hobson, 64 Iowa, 146; Snyder v. Fulton, 34 Md. 128, 138; Knight v. Foster, 39 N. H. 576, 582; Neeb v. Hope, 111 Pa. St. 155; Bowden v. Bailes, 101 N. C. 612, 616; Montgomery v. Knox, 23 Fla. 595, 596. Upon an extensive examination of adjudications on this subject, we were able to find but one case outside of this state, Bergman v. Jones, 94 N. Y. 51, 62 (which was a case of aggravated libel), where implied malice was held sufficient to warrant exemplary damages.
But, while we must adhere to our view as expressed in Nelson v. Wallace, supra, as the correct one in principle and supported by the uniform current of authority outside of this state, yet in view of the decisions in this state we would not feel warranted in reversing the judgment for error in the instructions. We must concede that instructions, almost identical in form with those given on behalf of the plaintiff in this case, have been either tacitly or expressly approved in this state in some cases. Buckley v. Knapp, 48 Mo. 152, 161; Clements v. Maloney, 55 Mo. 352; Wood v. Hilbish, 23 Mo. App. 389. It is to be noticed in this connection, however, that the case of Buckley v. Knapp, supra, on the authority of which these cases rest, was a case of aggravated libel, in which the defendant had failed in a plea of justification, and that the contest in the supreme court was not in what form the question of malice should be submitted to the jury, but whether punitive damages were recoverable at all in this class of actions.
In view of a retrial we add the following suggestions. The evidence offered by the plaintiff that he paid the notes was admissible, and shouldnot have been ruled out. It had a tendency to show that the defendant used the slanderous words (if he used them at all), knowing them to be untrue, which had no bearing on [158]*158the question of slander, but had a bearing on the question of intent, and, hence, was admissible in aggravation of damages. If the. plaintiff should testify to this fact on a retrial (and not otherwise), the defendant may also be permitted to testify to these antecedent facts. We ■ also add that, upon the record before us, the testimony of Doughty was admissible as tending to show a subsequent repetition of the slander, but the testimony of witnesses Tyler, Seitz and Silvey was too indefinite for that purpose, and should have been rejected.
Judgment reversed and cause remanded. Judge Biggs, while concurring in other parts of the opinion, holds that we should adhere strictly to the rule announced in Nelson v. Wallace, supra, and that the error in the instructions was sufficiently prejudicial to warrant'a reversal, regardless of other errors.
Judge Bond, while concurring in other parts of the opinion, holds that, the attack made on plaintiff’s character warranted the admission of rebutting testimony in support of his general moral character and veracity, and, hence, dissents.