Baldwin v. Boulware, 79 Mo. App. 5 (Mo. Ct. App., Eastern District 1899)

SMITH, P. J.

This is an action of slander wherein-the petition was in two counts, in each of which the words alleged to have been spoken, as the basis of the action, were slanderous Jper se and imputed to the plaintiff the crime of arson.

The answer was a general denial accompanied with a plea in mitigation, to the effect that defendant had good reason to believe that plaintiff set fire to his dwelling house and therefore the words alleged to have been spoken by him were-spoken in good faith in the belief that the same were true. There was a trial in which plaintiff had judgment and defendant appealed. The defendant assails the judgment on the ground that numerous errors were committed by the trial court in its action admitting and rejecting testimony and in refusing instructions requested by him.

Sldenceutteranee by others, The defendant insists that the court erred in rejecting his offer to show that at and about the time of the utterance ' of the alleged slanderous words by him that that subject-matter of the same was “one of general comment among the people and that he had heard responsible and reliable citizens of his neighborhood give expression to their judgment and belief in the premises as a circumstance together with other-circumstances justifying the defendant in coming to an honest belief that the plaintiff had been guilty of setting fire-to his house.” It has been thrice ruled by the supreme-court of this state that in actions of slander evidence proving

that the defamatory words were spoken by others was inadmissible either in justification or mitigation. Anthony v. Stephens, 1 Mo. 254; Moberly v. Preston, 8 Mo. 462; Buckley v. Knapp, 48 Mo. 152.

—: spoken on authority of others: pleading;: evidence. But while this is true, it seems that a defendant, in actions of this kind, may plead in mitigation that the slanderous ivords were spoken on the authority and information of others and that at the speaking of the words he gave the name of such others. In Church v. Bridgman, 6 Mo. 190, it was held that this plea was good, and that evidence was admissible under it. Judge Napton who wrote the opinion in the case distinguishes it from Anthony v. Stephens, ante. But in the present case there is no plea which would justify the admission of evidence of the kind which the court rejected. Edwards v. Printing Co., 99 Cal. 431; Bronson v. Briscoe, 59 Mich. 475; Mozey v. Association, 123 N. Y. 207; Hillman v. Shanklin, 60 Ind. 424; Republican Pub. Co. v. Mosman, 15 Col. 399; Larrabee v. Minn. Tribune Co., 36 Minn. 141.

The plea in this case is unlike that in Lewis v. Humphries, 64 Mo. 466. The rule there applied can have no application to a case where the pleadings are as here.

Evidence: conversations out of the presence of defendant. The defendant further objects that the court erred in permitting the witness Guffy to testify to the conversation which took place between him and George Boulware, the brother of the defendant, against whom there was pending another action for slanderous words uttered by him in relation to. the loss of the same building by plaintiff to which the slanderous words in the present case relate. And in further permitting the witness Guffy and Mrs. Hesford to testify as to conversations which took place between them in respect to the request made by George

Boulware to said Guffy. It appears from the testimony of the witnesses just referred to that Mrs. Hesford had been subpoenaed for the plaintiff in the slander suits which plaintiff had brought against each of the Boulware brothers. Anri that the defendant requested the witness Guffy to see Mrs. Hesford and ascertain whether she could not be induced to leave the state so as to be absent at the time she was required by the subpoena to attend the court. Guffy accordingly did see Mrs. Hesford and made of her the inquiry suggested by the defendant.

It further appears that Mrs. Hesford would testify that she saw a streak of lightning come down on the top of the plaintiff’s house at the time it took fire and was destroyed. When these conversations referred to took place the defense, relied on in the answer in each of the slander suits, was that of justification and for that reason the testimony of Mrs. Hesford was very material.

It seems to us that even if it were true that the conversation between Guffy and Mrs. Hesford was carried on in the absence of the defendant, yet it was of such a character as rendered it admissible. The defendant’s request was as much in his own interest as in that of his brother. The issues involved in both suits were then the same and both were on the docket of the court for trial. The evidence discloses an attempt to induce a witness, whose testimony was material for plaintiff, to absent herself from the state. It was unquestionably an attempt on the part of the defendant to suppress material evidence for plaintiff. It was not error to admit the testimony to which the defendant’s objections relate. Gillett’s Ind’t & Col. Ev., sec. 13; Underhill on Crim. Ev., sec. 121; Moriarty v. Railway, 5 L. R. 2 B., 314.

The defendant'further complains of the action of the court in rejecting his offer to prove that it was the belief of

Slander: evidence: belief of neighbors.

the plaintiff’s neighbors that he had set fire to his own house. This proof, as has been seen from what has already been said in a previous paragraph hereof, was inadmissible under the pleadings. There were some further objections taken by defendant to the action of the court in relation to the admission and rejection of testimony but these have been examined and found without merit.

—: identical words: instruction: other instruction. The defendant further objects that the court erred in refusing the sixth instruction requested by him which was to the effect that the plaintiff could not recover unless he proved substantially the same identical words alleged in his petition. It is a sufficient answer to this objection to say that instructions number 1 and 2 given for plaintiff were similar in effect. No error is perceived in the action of - the court in refusing the defendant’s seventh instruction for the reason that other instructions given by the court substantially covered the same ground.

-: damages: instruction. The defendant further complains of the action of the court in refusing his eighth instruction which declared that although the jury found the issues for plaintiff still he was not entitled to any damages on account of mental anguish or feelings, if any, nor on account of loss of business, if any, and in estimating his damages, they should not allow him anything on account of either. ’ The only compensatory damages which the law allows in slander suits of this kind are limited to injury to character or reputation. There seems to have been no claim made for damages on account of loss of business. We think it is very well settled by modern adjudications that mental anguish or wounded feelings are proper elements for the consideration of the jury in estimating the damages in an action for slander where the words on which the action is based are actionable per se.

We have been unable to find any case in this state where the question has been considered, but elsewhere the cases-supporting the statement of the law just made by us are quite numerous. Zeliff v. Jennings, 61 Tex. 458; Stallings v. Whittaker, 55 Ark. 494; Adams v. Smith, 58 Ill. 419; Markham v. Russell, 12 Allen, 573; Lombard v. Lennox, 155 Mass. 70; Blumhardt v. Rohr, 70 Md. 328; McDougald v. Coward, 95 N. C. 368; Foster v. Thomas, 21 Conn. 285; Newman v. Stein, 75 Mich. 402. There are cases to the contrary, notably that of Prince v. Eastwood, 45 Iowa, 640; but we think the most recent and best considered cases hold that the damages in actions of slander are not limited to compensation for injury to character or reputation but that mental suffering is likewise an element for the consideration of the jury in estimating the damages.

Accordingly we are of the opinion that the court committed no error in the trial of the cause of which the defendant can complain and therefore the judgment must be affirmed.

All concur.