Morgan v. Rice , 35 Mo. App. 591 ( 1889 )

Gill, J.

The defendant (appellant here) has filed no formal assignment of errors, and we shall only notice therefore the grounds of complaint as contained under “ points and authorities.”

The complaint is that the trial court erred in giving and refusing instructions, the principal contention being that the court should have given defendant’s instructions numbered one and four, which are quoted entire in the foregoing statement of the case.

It is sufficient to say of instruction numbered one, that it was properly refused, for the reason, if for no other, that it directed a verdict for the defendant upon ■ the one ground, alone, of defendant’s justification in charging plaintiff with stealing the Itnife, whereas plaintiff was further seeking, by pleadings and by evidence, judgment against defendant for having falsely charged plaintiff with stealing a turkey.. However defendant’s theory of the law can as well be settled, and disposed of, by a decision of the propriety of his instruction numbered four, and to that we now direct attention.

We understand defendant’s position, taken and embodied in his instruction number 4, to be this, to-wit; That even though the defendant may have declared to various parties that plaintiff “Morgan was a thief — had stolen his turkey and had stolen his knife” — yet if at the time of making said charges he accompanied the same with a statement of the facts and circumstances, which caused him to believe the plaintiff guilty of larceny, as charged, and that he was honest in such belief, then there would be no slander, and plaintiff could not recover. We cannot accede to this contention, as applied to the case now under cpnsideration. The cases of Pasley v. Kemp, 22 Mo. 407, and Hall v. Adkins, 59 Mo. 144, do not sustain the defendant’s position. The doctrine invoked applies only in cases where a crime is charged or other slanderous language is used, but with the charge are such specifications, or explanations, upon which the charge is based, that show in fact no crime was committed. As, for example, in Hall v. Adkins, supra, Hall was tenant of Adkins, under an agreement that Hall should pay so much money rent, to secure which Hall agreed to gather and store the corn on the premises of which he had possession. But instead he (Hall) proceeded to haul away and sell the corn. On these facts it was alleged that Adkins charged Hall with stealing the defendant’s corn, and the court held, that if, in making said charge of larceny against Hall, Adkins, in every such instance, and at the time, explained the circumstances and honestly made the charge, believing the facts constituted larceny, then the plaintiff could not recover — for, it was said, that along with the poisonous charge that Hall was stealing, Adkins explained the facts which showed there was no theft nor could there be in the very nature of things, which was sending an antidote along with the poison. It would be a very different case, had Adkins said, in reference to the charge that Hall was stealing corn, .that he (Adkins) had tracked Hall’s wagon to his (Adkins ) crib and that he knew Hall was stealing his corn and “could prove it on him” — as would more nearly fit the case at bar.

There would be no “antidote” along with the poison, in the case last stated, but rather an irritant of an aggravating character. When Adkins, in case above cited, charged Hall with committing larceny, by stealing his (Adkins) corn, he claimed a right to defend on the ground that, although he made the charge, in words, of stealing, he yet accompanied his words with the statement and specification of facts on which the charge was based, all of which showed that no larceny was committed. The supreme court held this proper matter of defense.

For the distinction here contended for, see opinion of Henry, J., in Trimble v. Foster, 87 Mo. p. 52, 53; also the well considered opinion of Hall, J., in Wood v. Hilbish, 23 Mo. App. 400-401.

It is not enough to shield the slanderer from the consequences of his ill-advised charges that he 11 honestly believed” the party, whose character was assailed, was a thief or a criminal. Nor is he protected in making false charges by reason of his giving extra judicial evidence to his auditors whereby he will more surely blast the character of the party slandered.

We have examined a large list of authorities on this subject, and therefrom we conclude the true and reasonable rule to be: That to protect one from an action of slander, where a false charge of felony has been made, the defendant, to defeat the action, cannot rely on his honest belief of the truth of the charge, and that he recited to his auditors, along with the charge, the facts and circumstances giving rise to such belief on his part, unless such facts and circumstances are of such a nature as to show, affirmatively, that no such crime was in fact committed. It will not be held a justification of such false charge, that the defendant detailed certain facts and circumstances, tending to prove the charge, and which were convincing to his mind. Such honesty of belief, upon such facts and circumstances as those last named, may go towards the mitigation of damages, but never to justify the slanderous charge. Towns, on Slander [3 Ed.] sec. 170; Upham v. Dickinson, 50 Ill. 96; Carmichael v. Shields, 21 Ind. 69; Allen v. Hillman, 12 Pick. 101; Barnman v. Boyer, 3 Binney, 515; Brite v. Gill, 2 Monroe (Ky.) 66; 2 E. D. Smith, 388; 16 Pick. 3, etc.

The trial court did not, therefore, err in refusing defendant’s instructions 1 and 4.

As to the objection to plaintiff’s instruction number 4, given on the measure of damages, it is sufficient to say, that there was some evidence as to the pecuniary and other conditions of the parties. One was shown to be a farm laborer, hiring out in the neighborhood, and boarding in the vicinity, while the defendant is mentioned as the owner and possessor of a farm and stock thereon, etc. While this evidence is not very satisfactory as to his financial standing, yet from the fact that the verdict was not large, and that defendant did not complain to the court below, of excessive damages, we' will not disturb the verdict and judgment on that account.

While the plaintiff’s first instruction is subject to some verbal criticism, yet when all the instructions are regarded in their entirety, and in reference to this case, it is seen that the circuit court in substance clearly and intelligently declared the law to the jury, and the facts fully warranted the verdict. The evidence as to taking the knife made no case of larceny against the plaintiff.

It follows from the foregoing discussion, of points brought to our consideration, that the judgment of the circuit court should be affirmed.

The other judges concur.