Jones v. Banner , 172 Mo. App. 132 ( 1913 )

TRIMBLE, J.

Respondent, a young woman twrenty-five years of age, sued appellant on a petition in four counts, the first of which alleged indecent, lascivious assault, the second and third charged libel, and the fourth slander.

At the close of plaintiff’s evidence she dismissed the second and third counts charging libel. And at the close of all the evidence a demurrer to the fourth count was overruled and the case submitted to the jury on the first and fourth counts charging assaults and slander respectively. The jury found for appellant on the assault charge, but returned a verdict against him on the slander count assessing compensatory damages at $500 and punitive damages at $250. After an unsuccessful motion for new trial, he has brought the case here on appeal.

The circumstances under which the alleged slanderous words are charged to have been spoken are these:

Appellant was a loan agent in Unionville, having his office np stairs directly over the front part of the postoffice on the south side of the public square. In January, 1910, a man named Mills raised a difficulty in appellant’s office, choked a young lady therein, got into a personal encounter with appellant and finally drew a pistol and fired, the ball going through the floor into the post office below. Appellant applied to J. W. Magee, then prosecuting attorney of Putnam county, to prosecute Mills, but Magee refused to do so. This raised a controversy between Magee, the prosecutor, and appellant which finally resulted in Magee publishing an article in one of the Unionville papers, in defense of his action in refusing to prosecute Mills, to the effect that Mills was not guilty.

On Pebrnary 14, 1910, Magee, having'secured two unsigned letters alleged to have been written by appellant to plaintiff, filed an information against appellant charging him with blackmail, that is, with attempting to extort money from plaintiff by means of threats made in said letters. (These letters were the same used as a -basis for the charges of libel contained in the second and third counts which were dismissed as hereinabove stated.) Appellant was never brought to trial on this information; the case, after continuances for several terms, being finally abandoned and dismissed. Shortly after this information was filed, however, and while it was pending, Magee became a candidate for renomination as prosecuting attorney at the August primary. Appellant, belonging to the same political party as Magee,' vigorously opposed the latter’s candidacy, giving as his reason Magee’s refusal to prosecute Mills who had raised a disturbance in appellant’s office. Meetings were held at different places over the county and at some of these meetings both Magee and appellant were present and spoke to the voters. At one of these meetings, held about the middle of June at St. Johns, a small town in the west part of the county, Magee in his speech to the voters referred to appellant’s opposition to his candidacy and mentioned the information for blackmail he had filed against appellant, and prophesied that he would send appellant to the penitentiary. Appellant Banner spoke in reply, and it is in this speech he is alleged to have used the words set out in the fourth count. They are as follows:

“I saw her drinking beer with two men about midnight one night. You sée what kind of a low, nasty character she has. I was looking through a window at the time I saw her.”

The colloquium set out that the two letters above referred to were written and published by defendant; that prior to the speaking’ of the words, an informa-. tion had been filed charging defendant with an attempt to extort money from plaintiff by means of the threats contained in the letters, and that the words were spoken while the criminal charge was pending, and while, the fact of the filing of the information and the reputation of the plaintiff for virtue and chastity were being discussed. There was also an innuendo averring that by the words spoken the defendant meant to charge the plaintiff with being guilty of fornication and illicit sexual commerce with men, and with being a woman of bad reputation for virtue and chastity.

The suit was brought November 2, 1910, by respondent throug’h her attorney, Magee, who was defeated for renomination in the primary.

The answer to the fourth count denied that the defendant spoke the words' or the substance of the words charged, and alleged that what he did say was. this: “I saw her in a building through a window with a couple of young men drinking out of a bottle, and. you can see or judge what kind of a character a young lady has who would do that.”

The answer further alleged that the defendant was a voter of Putnam county at the primary at which Magee was a candidate for renomination, and was opposing his candidacy; that Magee, in order to render defendant’s opposition to him futile, stated at the St. Johns’ political meeting that he had filed a criminal charge against defendant for attempted blackmail of the plaintiff and would send defendant to the penitentiary; that defendant being called upon by voters to reply spoke the words last above set out.

No special damages were pleaded or proved. In slander the rule is not the same as in libel. The rule in slander is that oral words tending to disgrace a person, and not imputing a crime, áre not actionable without proof of special damages. [18 Am. & Eng. Ency. of Law (2 Ed.), pp. 863, and 906; Nelson v. Musgrave, 10 Mo. 648; Bundy v. Hart, 46 Mo. 460,1. c. 462; Birch v. Benton, 26 Mo. 153,1. c. 160.] This rule . has been modified in our State by section 5424, Revised Statutes 1909, making it actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. So that in this case, as special damages are not pleaded nor proved, the words charged are not actionable unless they.can be said to contain a charge of unchastity against plaintiff.

Are the words alleged to have been uttered capable of being interpreted as containing such a charge? Appellant urges that they are not. However, reprehensible the drinking of beer may appear to many persons, and however blameworthy such an act on the part of a young lady in the presence of young men may in fact be, yet we cannot shut our eyes to the fact that many women will drink a glass of beer in the presence of and with members of the opposite sex, and yet no thought of unehastity will occur or arise therefrom. Undoubtedly it is not a praiseworthy custom and is a dangerous practice tending to lead young per-

sons into habits of intemperance to the marring of their lives and the blasting of many fond hopes bound up in them. But such act does not necessarily imply that one who is seen to take a glass of .beer, even at midnight and in company with men, is guilty of having sexual intercourse with them. And if drinking beer with men at night were all that was said, it would readily appear that the words were not and could not be made actionable. But the trouble is, this is not all that was said. Defendant himself broadened the effect of this charge by using the words “low, nasty character.” In determining whether words are actionable or not they are now construed by courts in the plain popular sense in which the rest of the world naturally understand’ them. [McGinnis v. Knapp & Co., 109 Mo. 131, 1. c. 140.] “Words are to be taken in the sense which is most obvious and natural and according to ideas they are calculated to convey to those to whom they are addressed. The principle of common sense which now governs in the construction of words requires that court shall understand them as other people would. The question always is, how would ordinary men naturally understand the language?” [18 Am. & Eng. Ency. of Law (2 Ed.), 974; Vanloon v. Vanloon, 159 Mo. App. 255.] Applying this rule, what is meant and understood by every one when it is said of a woman “she has a low, nasty character?” The Standard Dictionary defines “nasty” when applied merely to speech or conduct as being “morally filthy; obscene; indecent.” Is it not much more definite in its meaning when used to describe the character one has, especially a woman? Appellant contends that the words “low, nasty” do not import unchastity because the words used show that these terms are based solely on the act of drinking beer with men. That is, that which defendant really said was “drinking beer makes her low and nasty,” or that “she is low and nasty in that she drank beer with men,” and hence the words do not import nnchastity. But the terms “low, nasty” were not used to describe her conduct in drinking beer but to specify her “character.” “It is not necessary that the words should amount to a directly affirmative charge of fornication, adultery or unchastity; it is sufficient if the words were calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of unehastity.” [25 Cyc. 319; Yanloon v. Yanloon, 159 Mo. App. 255, 1. c. 267.] We are unwilling to hold that such charges made against a woman falsely cannot be stated under such circumstances as to render them actionable, and hence there was no error in overruling appellant’s demurrer to the evidence.

Appellant, on the theory that the words used are not actionable per se, contends that, before plaintiff was entitled to recover, it was necessary for her to allege and prove that defendant spoke said words intending to charge plaintiff with being unchaste and guilty of fornication; and that plaintiff’s instructions were erroneous in that they omitted to require the jury to find that he used them with that intent. Also that the court erroneously refused appellant’s instruction “A” which told the jury that, if the words were spoken not intending to charge plaintiff with fornication or illicit sexual commerce with men. there could be no recovery. Even on this theory, so far as the petition is concerned, there was no demurrer filed to it or objection made to it on any ground. It is therefore good after verdict.

As to plaintiff’s instructions omitting the element of defendant’s intention to charge nnchastity or fornication, and the refusal of defendant’s instruction “A,” the complaint would be good were it not for the fact that defendant in his testimony admitted that such was his intention. In such case there was no need for the jury to be told that they must find defendant used the words in the actionable sense charged. Nor was it error to refuse defendant’s instruction “ A” authorizing them to find for defendant if they found the words were used by him not intending to charge fornication, since it was contrary to his own admission. On cross-examination he was asked:

“Q. But as a matter of fact you meant that she was not a woman of virtue and therefore yon ought not to be prosecuted for writing these letters, didn’t you? A. How was that? Q. You meant to charge she was not a woman of virtue, and you ought not to be charged with it? A. Meant to charge she was not a woman of virtue? Q. Yes, sir? A. Possibly I did.”

Objection is also made that the court permitted certain witnesses for plaintiff to testify that they understood the words used to mean that plaintiff was an unchaste woman guilty of fornication or illicit sexual intercourse with men. This testimony was given before defendant admitted on the stand that he intended to make that charge. • Defendant was asserting that the words did not impute unchastity at all. Plaintiff was trying her case on the theory that under the circumstances in tvhich they were uttered, and in the sense in which they were used,' they did impute such offense. Up to the time these witnesses testified, and indeed afterward, defendant urged that the charge was merely that the plaintiff drank beer with' men at night and could not impute unchastity. Where words on their face are susceptible of more than one meaning or where they are innocent in themselves but derive an offensive meaning because of certain conditions or circumstances under which they were uttered, then the particular meaning becomes a question of fact for the jury. And the best proof of what meaning was actually conveyed is the testimony of witnesses, who heard the words uttered, as to what they understood them to mean. [Julian v. Kansas City Star, 209 Mo. 35, 1. c. .79.] Where the language may or may not impute the crime which is charged to have been imputed, such testimony is proper. [Townshend on Slander, sec. 140; Nelson v. Borchenius, 52 Ill. 236; Wagner v. Printing Co., 45 Mo. App. 6, 1. c. 13.] In addition to this, as stated above, defendant afterward went upon the stand and admitted that such was the meaning he intended tó convey. "In view of this, even if it were otherwise doubtful as to such evidence being admissible, it is difficult to see how such testimony could be so hurtful as to constitute reversible error.

The questions of whether the words charged were uttered or not and whether they were false, were submitted to the jury and they decided them for plaintiff. If defendant uttered them and they were false and he intended to charge plaintiff with unchastity, as he admitted he did, then legal malice follows. We have examined the case carefully and are without excuse for disturbing the verdict.

Hence judgment affirmed.

All concur.