Israel v. Israel

84 S.W. 453, 109 Mo. App. 366, 1904 Mo. App. LEXIS 147

• Court: Missouri Court of Appeals
• Decided: December 27, 1904
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — The errors assigned on this appeal relate exclusively to the rulings below on the requests for instructions to the jury. No special damage was stated to have attended the false charges in regard to the plaintiff’s treatment of her insane husband, nor was any special damage proved to have resulted from anything the defendant said. The charges regarding her behavior to her husband were not actionable without such proof, and, therefore, were withdrawn from the- jury’s consideration. But the imputation against the plaintiff’s chastity, if false and uttered maliciously, was actionable, per se by force of our statute. [E. S. 1899, sec. 2863; Hudson v. Garner, 22 Mo. 423.] It follows that if the defendant was proved maliciously to have made a' false imputation of that kind against the plaintiff, he was liable without proof that damage resulted, as the law presumes damage from the speaking. [Hudson v. Garner, supra; Hillebrand v. Dreinhoefer, 13 Mo. App. 586; Newell, Slander & Libel (2 Ed.), chap. 26, sec. 1.] The law presumes or implies malice, too, from the false utterance; the only malice that is requisite to make out a case for compensative recovery. [Callahan v. Ingram, 122 Mo. 355; Buckley v. Knapp, 45 Mo. 161.] In this State malice is held to be the gist of an action for slander; but it is held also that falsely uttering actionable words draws down on the speaker the legal implication of malice and dispenses with express proof of it. These rules savor somewhat of technicality and legal fiction, but are only a way to a just result; namely, affording a party wronged by the false utterance of another, compensation for his injury without regard to whether or not spite or ill-will was in the heart of the speaker. No mischief may have been intended when the words were spoken; but the speaking was intentional ; and, if the words were false and of slanderous effect, a wrongful act was intentionally done. That constitutes malice as the law understands the word; for voluntarily doing or saying something, without just cause or excuse, which is likely to injure another, shows a spirit lacking in proper regard for social duty and the rights of others, even when done without particular ill-will. These observations seem rather abstract and remote from the present case; for the evidence goes to show that if the defendant addressed the plaintiff with the epithet impeaching her chastity, he was malicious in fact as well as in law. Ill-will and hatred distinctly appear as the concomitants and, indeed, the spring of his accusation. He attempted neither to justify the charge by showing it was true, nor to palliate it by showing he had good cause to believe it was true, or that he uttered it when excited by rage, or used the epithet without intending the meaning it naturally conveys. His defense was that he did not utter it at all. The main issue, therefore, was whether or not the defendant spoke the slanderous words in the hearing of a third person. The jury found he did, and this finding entitled the plaintiff to compensation for the injury entailed, regardless of whether there was actual malevolence in the defendant’s feeling towards the plaintiff or not. [Callahan v. Ingram, supra; Jones v. Murray, 167 .] As exemplary damages were asked, the defendant’s motive and feeling became important, as they would indicate whether actual malice inspired his conduct and the extent of the punishment he merited. [Callahan v. Ingram, supra; Jones v. Murray.] In those cases and many others, it was said, in effect, that a slanderous intention and motive become important on the question of mitigating the exemplary damages to be imposed by way of punishment, but not to take away or diminish a plaintiff’s right to be fully compensated for the injury he suffered from the defendant’s tortious language. If the language of the defendant had been of a kind which enjoys a qualified privilege, a different, rule would apply, and it then would have been necessary to prove actual malice. The rulings on the requests for instructions to the jury concerning malice, at the trial of the present case, conformed to the law as it is laid down in the books. The given instructions permitted the jury to take account of the defendant’s motive in making the false accusation against the plaintiff’s chastity, in passing on the inquiry of whether his behavior was of a turpitude deserving more punishment than would result from awarding compensation to the plaintiff, but not in determining whether she ought to be compensated. No punitive damages were given, and we are not called on to review the instructions in regard to them. We hold there was no error in excluding from the jury’s consideration the question of defendant’s intention, motive and express malice on the issue of her right to compensative damages.

The defendant’s counsel insist they were entitled to the instruction requested, submitting the- question of whether the defendant, if he spoke the slanderous words, did so as mere abuse, neither intending to accuse the plaintiff of being unchaste, nor being understood in that sense by his auditors. That instruction was inaccurately drawn, as will be shown below. But as the instruction given at plaintiff’s request, that defendant’s motive and intention were important only on the issue of punitive damages, might have told prejudicially against this theory of defense in the particular case, though sound as a general statement of the law of damages in slander cases, we will first inquire if there was any substantial basis in the evidence for such a defense. And herein it is important to look into the decisions on the subject to ascertain with as much certainty as we can, the circumstances in which the defense that an apparent calumny was not, in truth, caluminous, because not intended nor understood to be, has been allowed. We glean from the decided cases that the sense in which words ordinarily actionable were spoken, may become important in a slander suit in two ways: either as constituting an absolute defense, or to diminish damages. Actionable words may be uttered concerning a party with such explanatory statements, or in connection with such facts, as make it clear the words were neither used nor taken by listeners in their actionable sense; in which case they lose their actionable quality and a party suing on them can not recover. [Trimble v. Foster, 87 Mo. 49; Hall v. Adkins, 59 Mo. 144; Bridgman v. Armer, 57 Mo. App. 528; Richey v. Stenius, 73 Mich. 563; Haynes v. Haynes, 29 Maine 247; Shull v. Raymond, 23 Minn. 66; 2 Grreenleaf, Evidence, sec. 43; 18 Am. and Eng. Ency. Law (2 Ed.), p. 987.]

In Trimble v. Foster, just cited, it was said that if words were spoken sufficient to charge larceny, but accompanied with a specification of acts on which the charge was based which showed no larceny had been committed, a cause of action could not be predicated on such words. So in Hall v. Adkins, the defendant had said the plaintiff was stealing his (defendant’s) corn; but in making that statement there was evidence to show the defendant accompanied it with a statement of the facts on which he based the charge and which showed no larceny had been perpetrated or, indeed,, conld have been, but simply a breach of trust. It was ruled that, if the felonious charge was made under those circumstances, there could be no recovery, as an antidote was sent along with the poison [Citing Lasley v. Kemp, 22 Mo. 407]. Bridgman v. Armer, presented a similar state of facts. Bridgman was Armer’s tenant and the two had a difficulty over Bridgman’s refusal as tenant to deliver to Armer the latter’s portion of the oat crop. During the quarrel Armer became enraged and called Bridgman a thief within the hearing of workers at a threshing machine which was cleaning ' the oats. The bystanders might not have understood Armer to mean Bridgman had committed a larceny in not delivering his (Armer’s) part of the oats to him, for such conduct would not constitute larceny. It was, therefore, ruled that if the felonious epithet was used only as abuse instead of to charge a crime, and was understood by the hearers as abuse and not as a charge-that plaintiff was in fact a thief, the words were not. actionable and the verdict must be for the defendant. More cases of the like tenor could be cited. The principle underlying all of them is this: "When explanatory statements made by the speaker in connection with the-defamatory language, or the circumstances concerning which he speaks, are such that the aggrieved party could not have been guilty of the accusation, and it is clear that the speaker did not intend his words in their natural and precise sense and that his auditors understood he did not, the words, though ordinarily actionable, cease to be. This is equivalent to saying that a person can not recover damages for a criminal or other-actionable charge unless the charge was intended, or was understood by others to have been intended because apt language was spoken to express such an intention. One may accuse another of theft in jest in the-hearing of bystanders who comprehend that a mere jest was intended, and manifestly this is no slander because,. in the essence of the matter, theft was not charged. The same rule holds good where the words used import the commission of a theft but the circumstances show a theft was impossible, and the hearers were in possession of the circumstances so that they could interpret properly the words spoken and gather the speaker’s real meaning from them. The rule has been applied to cases where it appeared the parties were engaged in a violent altercation and applied vituperative epithets to each other which ordinarily would be actionable, but obviously were uttered merely in the ebullition of angry emotion and not in their literal sense. [Fulda v. Caldwell, 9 La. Ann. 358; Goldberg v. Dobertine, 28 L. R. A. 721, 46 La. Ann. 1303; Richey v. Stenius, 73 Mich. 563; Penfold v. Westcote, 2 B. & P. N. R. 335; Pasquine’s case and Tabart v. Tipper, 1 Camp. 351.] Most, if not all, such cases as those just cited require that the provocation should have immediately preceded the utterance of the alleged slander and that the injurious words should have been spoken under violent excitement, in the course of mutual abuse and recrimination, and when it was apparent to the hearers that they were but the ejaculations of passion. The idea is conveyed in some of the opinions that the defendant’s calumnious remarks are to be regarded as acts of self-defense against the plaintiff’s previous attack. There are many decisions which oppose the extension of the rule so as to include instances of actionable remarks spoken in passion, whatever the effect on the hearers, and refuse to recognize the speaker’s passion as an excuse further than to lessen the damages. [Flagg v. Roberts, 67 Ill. 485; Shattuc v. McArthur, 25 Fed. 133; McClintock v. Curb, 4 Iowa 453; Finch v. Finch, 21 S. C. 543.] The Louisiana decisions have shown the most charity to angry slanderers who spoke under provocation, and some of the rulings in that State have been pronounced exceptional. [Brewer v. Chase, 121 Mich. 526, 46 L. R. A. 397.] The case of Newman v. Stein, 75 Mich. 402, looks inconsistent with, the earlier case of Eitchey v. Stenins, as the latter decision took the defendant’s just provocation to he a complete defense ; whereas, the other treated anger and passion as mitigating facts. In order to exonerate a defendant from liability for actionable words on the ground that he did not mean what he said, he must be found to have spoken without intending the injurious meaning ordinarily attached to his language and to have been so understood by his hearers. [Ellis v. Whitehead, 95 Mich. 105; Hankinson v. Bilby, 16 Mees. & W. 445; Steman v. Marx, 58 Ala. 608.]

If the slanderous language is spoken under excitement and passion, that fact may be given in evidence to mitigate the damages, as going to show want of actual malice on the part of the speaker and that his conduct does not deserve more punishment than may result from making the injured party whole. [Miles v. Harrington, 8 Kan. 425; Beardsley v. Maynard, 4 Wend. 336; s. c., 7 Wend. 560; Gould v. Weed, 12 Wend. 12; Dolvin v. Wilder, 34 How. Prac. 488; Brown v. Brooks, 3 Ind. 518; Zuraski v. Reichmann, 116 Iowa 388.] The court below allowed the jury to consider the defendant’s motive and intention in respect to the prayer for exemplary damages, and in doing so gave the defendant the benefit of any mitigation he was entitled to by the rule last mentioned.

But was the defendant entitled to have the jury say whether there was a complete defense to the action because it was fairly inferable that he neither meant, nor was understood to mean, an imputation against the plaintiff’s chastity? It is to be remembered that no such defense was attempted formally; but it seems to be admissible under the general issue. [Newell, Slander & Libel, p. 649.] The entire contention in regard to the words being used in a vituperative, instead of an accusing sense, is found in the fact that the evidence tended to show the defendant was angry and excited. But he made no statements in connection with the words which would serve to palliate their natural atrocity nor did he refer to any circumstance known to the auditors, which would show no impeachment of chastity was meant. We are pointed to the supposed fact that Miss Miller, the only auditor except the plaintiff and the defendant’s wife, did not understand the defendant to assail the plaintiff’s character for chastity. But the witness ’ testimony was that she did not believe the charge because she knew it was false. Instead of her statement conveying the meaning that she understood the defendant to be heaping abuse on the plaintiff without intending his words in their true sense, the effect, of the statement is that she understood the defendant to make the charge of unchastity, but knew it was false. We think there was no provocation close enough to the occasion to warrant the inference that the defendant was in a transport of rage and merely pouring out indiscriminate abuse. Quite a while had elapsed since he had seen his brother, and meanwhile he had visited another house and had ample time for any passion which might have been excited by his brother’s condition to moderate. He was courteously received by the plaintiff and immediately uttered the slander. Besides, it is conceded there was settled animosity between the parties. In our opinion the defense that the.words were not used in an actionable sense can not be allowed on the facts before us without unduly extending the principle of nonliability for calumnious utterances because of excitement and provocation. In view of this ruling it is hardly worth while to examine the instructions requested by the defendant on the subject. However, they were erroneous statements of the law. On the question of malice the court was asked to instruct that malice was the gist of the action and that the jury had the right to consider the facts and circumstances in evidence in determining whether malice existed or not and if they believed that what the defendant said was not said maliciously, the verdict should he in his favor. That instruction ignored the rule of law stated above that malice is presumed from the false utterance of actionable words in so far as the slandered person’s right to compensatory damages for the injury is concerned. The jury could look into the facts and circumstances to ascertain if there was actual malice in considering the question of punitive damages. But the requested instruction made the absence of actual malice a defense against any recovery. The law was settled the other way by the decision of Callahan v. Ingram, wherein it was said a plaintiff may recover for a slander on the malice the law implies from the utterance of false words of an actionable character. Perhaps a lack of clearness is introduced by saying malice is the gist of the action, but that it is implied; and in some jurisdictions neither legal nor actual malice is required for the award of compensatory damages. Besides, as a slandered party may recover for mental suffering (Nicholson v. Rogers, 129 Mo. 136), we can see that malevolence in the speaker, as shown by his manner, might intensify or lessen the pain inflicted by his words. But the rule is that the motive and intention of a defendant in a slander suit are to be taken account of only in determining whether to allow exemplary damages. The first paragraph of the requested instruction in regard to the defendant’s angry mood when he spoke the slanderous words, reads that it was necessary for the jury to find from the evidence and all the circumstances shown by the .evidence that the defendant meant to assail plaintiff’s character; that his language was so understood by the persons who heard it, and that if the jury did not so find, they would render a verdict for the defendant. That is not the law. Defendant spoke words which in their natural signification and as they would ordinarily be understood, cast a foul imputation on the plaintiff’s character. In an action for slander the words are, in the first instance, to be taken in tbeir natural sense and it devolves on the defendant to show they were spoken innocently. [Newell, Slander and Libel, p. 302, sec. 25; Pipe v. Van Wormer, 6 How. Prac. 699.] And to thereby acquit himself of liability, it devolves on a defendant to establish by a preponderance of the evidence, not only that he spoke the words without intending to convey their usual meaning, but that his hearers knew he did not intend that meaning. Now the instruction under review made the plaintiff’s recovery depend ' on the jury’s finding; firstly, that the defendant meant to assail the plaintiff’s character; secondly, that his language was understood in that sense by his hearers. Naturally they would understand it in that sense and no other, and there is no proof that they understood it differently. If they did so understand it, it is immaterial, so far as the plaintiff’s right to compensation is concerned, in what sense defendant used the words. A person is presumed to intend the natural consequences of his acts, and when a man makes such a charge against a woman he can not escape responsibility by saying he did not mean it, without proof that it was not taken seriously because those who heard it knew he did not mean it. The prosperity of a slander, like that of a jest, lies in the ear of the hearer. And it is the • sense in which the hearer apprehended the words which the law chiefly considers as productive of the chief mischief. ' It has been decided in this State that drunkenness will not excuse or mitigate a slander. [Mix v. McCoy, 22 Mo. App. 488.] There are decisions to the contrary; and be that proposition as it may, we know of no principle or precedent which would excuse the defendant from answering to the plaintiff on a mere finding by the jury that he did not mean what he said.

We have gone over the errors assigned for a reversal of the judgment and find that none of them was well taken.

The judgment is affirmed.

All concur.