Butts v. Long , 106 Mo. App. 313 ( 1904 )

REYBURN, J.

(after stating the facts). — As announced by this court upon the first appearance of this case, three elements must coexist to maintain such action, namely; the words spoken must be false, they must be maliciously published or uttered, and they must result in pecuniary loss or injury to the plaintiff. A careful scrutiny evinces the absence of these essential prerequisites to recovery in the testimony introduced by plaintiff. The law has been laid down by an eminent authority, on this subject, that it is not actionable for any man to assert his own rights at any time, and though defendant may fail to prove such right if a,t the time he spoke, he supposed in good faith that he had such right, no liability is imposed; that it is not sufficient for á plaintiff to prove in such action absence of right in defendant, he must also offer evidence of express malice, and that defendant could not honestly have believed in existence of right on his part, or had no reasonable cause for such belief, and even then the jury are not bound to find malice, for a defendant, though acting stupidly, may have been prompted by innocent motive. Odgers, Libel and Slander, sec. 142, p. 109 (Eng. Ed. 1887). The claim of title made by John Long, was made when defendants were justified in belief and claim of ownership being circulated after long, adverse, uninterrupted possession by defendant, and its publication was devoid of malice, and in accord with good faith and honesty of purpose on their part. The evidence is also fatally defective in failing to exhibit title in plaintiff; for so far as disclosed, the links in the chain of title connecting Bass, plaintiff’s grantor, with Brooks, defendants’ grantee, are missing. Under the evidence reproduced in tire record here, it was not only the clear duty of the trial court to sustain defendants’ motion for new trial, but the instruction requested on behalf of defendants, at close of plaintiff’s testimony, that the evidence was not sufficient to authorize a recovery against defendants was justified and might properly have been given.

Judgment affirmed.

Bland, P. J., and Goode, J., concur, the former because he does not think the petition stated any cause of action.