Opinion
Opinion filed January 8, 1952.
1. — Appeal and Error. Where jury in slander action believed testimony of plaintiff and plaintiff's witnesses which was of substantial character, Court of Appeals could not disbelieve such testimony.
2. — Libel and Slander. Petition in slander action was not required to allege that alleged slanderous statements were made in presence and hearing of other person or persons.
3. — Appeal and Error. In slander action, voluntary statement of plaintiff that plaintiff belonged to named fraternal organization did not require reversal of judgment for plaintiff where defendant's objection to such statement was sustained, and plaintiff as witness was cautioned, and jury was instructed to disregard such statement.
4. — Libel and Slander. Statement that defendant allegedly made, that plaintiff had stolen cattle from defendant, would not be slanderous in itself if made in good faith.
5. — Libel and Slander. In slander action brought against defendant who allegedly had stated that plaintiff had stolen defendant's cattle, good faith of defendant and absence of actual malice of defendant were for jury.
6. — Appeal and Error. Judgment for plaintiff in slander action would not be reversed because of action of trial court in permitting plaintiff to amend petition as to certain count by changing date of alleged statements of defendant from time therein alleged to another time, where no showing was made that defendant asked a continuance or that defendant objected to amendment, and since amendment of pleadings is authorized by statute.
7. — Libel and Slander. In slander action instructions authorizing assessment of punitive damages if verdict was found for plaintiff in actual damages, if jury thought punitive damages proper under circumstances, were not objectionable as suggesting assessment of punitive damages.
8. — Libel and Slander. If plaintiff in slander action was entitled to recover punitive damages, financial condition of defendant could be considered in connection with actual damages found by jury in determining amount of punitive damages to be awarded.
9. — Trial. In slander action, instruction that statements of defendant allegedly made must have been made within two years before filing of action was not a "roving commission" to jury to consider statements made at other than times alleged in counts of petition.
10. — Libel and Slander. When confession of crime is falsely charged, malice is presumed.
11. — Libel and Slander. In slander action if jury believed defendant falsely stated that plaintiff had stolen defendant's cattle, statement would be presumed to have been made maliciously and proof of express malice would not be necessary to warrant verdict for plaintiff.
12. — Trial. Action of plaintiff's attorney in slander action in stating in argument that case had originated in another county in state and was afterwards brought on change of venue to county in which it was being tried did not require reversal of judgment for plaintiff where trial court rebuked plaintiff's attorney for making such statement.
Appeal from the Circuit Court of Howell County. — Hon. Gordon Dorris, Judge.
AFFIRMED.
Sam Richeson, Lynn Bradford and Green Green, Attorneys for Appellant.
I. The Court erred in permitting the introduction of any evidence in this case for the reason such petition and the various counts therein failed to state a cause of action against defendant. (A) The petition and separate counts failed to set out that the alleged slanderous statements were made in the presence and hearing of any person or persons. This was essential to the statement of a cause of action. Starnes v. St. Joseph Ry. Co., 52 S.W.2d 852, 331 Mo. 44; Klaber v. Chicago Ry. Co. 225 Mo. App. 940, 33 S.W.2d 149; Norris v. Brady, 132 S.W. 1059, 234 Mo. App. 437. II. The Court erred in failing to declare a mistrial as requested by defendant (Trans. 46, 47) by reason of the voluntary statement of the plaintiff Delcour, as a witness in his own behalf, that he was a member of the Masonic Lodge at Salem, Missouri. Such statement was highly prejudicial and could not and was not corrected by the Court merely striking such statement from the record. McClendon v. Bank, 174 S.W. 203, 188 Mo. App. 417; Palmer v. Miller, 60 F. Supp. 710. III. The Court erred in failing to sustain defendant's demurrer to each count at the close of the plaintiff's evidence. Such evidence was insufficient to sustain the issues on the counts submitted. (A) The evidence as introduced by plaintiff established, as a matter of law, that the alleged statements as made to Earl Mays under Count IV and to Bruce Wilkerson under Count V were "qualified privileged," and therefore not slanderous. Perdue v. Montgomery Ward (Sup.), 107 S.W.2d 12, 341 Mo. 252; Attebury v. Brinks Express Company, 90 SW (2) 80; Lee v. Fuetterer Supply Co., 323 Mo. 1204, 23 S.W.2d 45, 60; Gust v. Montgomery Ward, 80 S.W.2d 286. IV. The Court erred in permitting plaintiff at the close of plaintiff's evidence to amend the petition as to Count II by changing the date from March, 1948, to January 13, 1948, as the time that the alleged slanderous words were alleged to have been spoken. Defendant had prepared for trial on the assumption that plaintiff was relying on an alleged conversation in March, 1948, and was not prepared to meet the issue on alleged slanderous words alleged to have been spoken on January 13, 1948. Permitting plaintiff to change such date from March to January was in effect permitting plaintiff to state an entirely new cause of action, different from that pleaded in the petition and on which defendant announced ready for trial. Nave v. Dieckman 208 S.W. 273; Boo v. Dixon, 43 F. Supp. 214; Anderson v. Shockley, 181 S.W. 1151, 266 Mo. 543; Personal Finance Co. v. Swartz, 170 S.W.2d 701; Brinkman v. Deidesheimer, 201 S.W.2d 503; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499. V. At the close of all the evidence the Court erred in failing to give plaintiff's offered instructions for directed verdicts for defendant on each count. The evidence was wholly insufficient to sustain the issues on each and every count. It was established by the evidence on Counts IV and V that if such words were spoken by plaintiff as alleged, such statements were under circumstances making them "qualified privileged", and therefore not actionable. Gust v. Montgomery Ward, 80 S.W.2d 286; Perdue v. Montgomery Ward, 107 S.W.2d 12, 341 Mo. 252; Barber v. Time 348 Mo. 1199, 159 S.W.2d 291. VI. The Court erred in giving at the request of plaintiff instructions numbers 1, 2, 3, 4, and 5. These were identical instructions in form and substance except as to the words spoken and to whom they were spoken. (a) By such instructions and each and every one of them the jury was not required to find such words were wilfully and maliciously spoken. This was an essential requirement whether such alleged utterances were or were not slanderous per se. Hoffner v. Western Leather Clothing Co., 161 S.W.2d 722; Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094-1097; Hartford Fire Insurance Co. v. Trimble, 298 Mo. 418, 250 S.W. 393. (b) The failure of such instructions 3 and 4 aforesaid to require plaintiff to prove that such words were spoken "maliciously" was erroneous for the reason that the uncontradicted evidence established that such statements, if made, were "qualified privileged." Bouligny v. Metropolitan Life Ins. Co. 133 S.W.2d 1094; Franklin v. Kansas City 260 S.W. 138; Jones v. Frisco 50 S.W.2d 217. (c) Such instructions 1, 2, 3, 4, and 5, and each of them, were erroneous for the reason that such instructions failed to set out the dates upon which the alleged slanderous words were spoken, and as a result thereof the jury was permitted to guess, surmise and speculate as to which conversation was in issue. Witnesses had been permitted to testify on behalf of plaintiff, over objections of defendant, to various conversations with defendant occurring on different dates and constituting separate causes of action, and even to conversations which were not actionable. Anderson v. Shockley 181 S.W. 1151, 266 Mo. 543; Hoeffner v. Western Leather Co., 161 S.W.2d 723-729. (d) Such instructions 1, 2, 3, 4 and 5 were also erroneous on the statement as to the facts essential to the allowance of punitive damages. The jury was not required to find such words were spoken "maliciously" as a prerequisite to the allowance of punitive damages. Hoeffner v. Western Leather Clothing Co. 161 S.W.2d 722; Hartford Fire Insurance Co. v. Trimble, 298 Mo. 418, 250 S.W. 393; Gust v. Montgomery Ward, 80 SW (2) 286. (e) Such instructions, and each of them, were further erroneous in directing the jury to consider the financial condition of plaintiff in connection with the allowance of actual damages. Such statement in the instructions was a comment on the evidence outside the scope of the issues and highly prejudicial to the rights of defendant. Bolles v. Kansas City Southern Ry. Co. 115 S.W. 459; 4 Ency. of Evidence, p. 29. (f) Such instructions 1, 2, 3, 4 and 5, and each of them, were erroneous in failing to negative the defenses of "truth" and "qualified privileged" as pleaded and established by the evidence. This was necessary to a proper instruction directing a verdict regardless of which party had the burden of proof. Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094; Franklin v. Kansas City, 260 S.W. 502; Hill v. Johnson, 299 S.W. 138; Jones v. Frisco, 50 S.W. 217; Perdue v. Montgomery Ward, 107 S.W.2d 12. (g) Instructions 1, 2, 3, 4 and 5 were erroneous for the reason such instructions, and each of them, attempted to cover the whole case and direct a verdict, but failed to require the jury to find that such words were not only spoken in the presence and hearing of the person named, but also THAT SUCH PERSON HEARD AND UNDERSTOOD the words spoken. Norris v. Brady, 132 S.W.2d 1061; Starnes v. St. Joseph Ry. Light, Heat and Power Co. 52 S.W.2d 852. VII. The Court erred in giving, on behalf of plaintiff, instruction number 6. Such instruction authorized the jury to find punitive damages for plaintiff on every count submitted if they found actual damages for plaintiff on even one count of such petition. Such instruction also authorized the jury to allow punitive damages on any count without a finding that such act or words "spoken" was done maliciously. Bouligny v. Metropolitan Life Ins. Co. 133 S.W.2d 1094; Franklin v. Kansas City, 260 S.W. 502; Hill v. Johnson, 249 S.W. 138; Jones v. Frisco 50 S.W.2d 217. VIII. The Court erred in giving at the request and on behalf of plaintiff instruction number 7. By this instruction the jury was advised that if the words were spoken to any third person within a period of two years prior to December 19, 1949, it was a publication. By the terms of this instruction, applicable to all counts, the jury was given a roving commission to consider all conversations in evidence alleged to have been had between Wilson and third persons during a period of two years, thus permitting the jury to consider and rely on separate acts and words spoken which constituted separate and distinct causes of action from those pleaded. Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Anderson v. Shockley, 181 S.W. 1151, 266 Mo. 543; Hoffner v. Western Leather Co., 161 S.W.2d 723-729. IX. The Court erred in giving instruction 8 at request of plaintiff. By this instruction the jury was authorized to find both actual and punitive damages for plaintiff on each count without first being required to find that such words were maliciously spoken. It is the well-settled law that where there is evidence of qualified privilege or where punitive damages are involved there must be evidence establishing express malice. Hoffner v. Western Leather Clothing Co., 161 S.W.2d 722; Barber v. Time, 348 Mo. 1199, 159 S.W.2d 291; Kroger Grocery Bakery Co. v. Yount, 66 F. (2) 700, 92 A.L.R. 1166. X. The Court erred in refusing to declare a mistrial by reason of certain prejudicial remarks in the closing argument of Mr. Addison on behalf of plaintiff wherein he informed the jury that defendant had taken a change of venue from Crawford County to Howell County, Missouri. This statement was highly prejudicial to the rights of defendant, such remarks being made in the closing argument, and all this in view of the fact that earlier in the trial plaintiff had volunteered a statement to the jury that he was a member of the Masonic Lodge at Salem, Missouri. Callaway v. Fogel, 358 Mo. 47, 213 S.W.2d 405; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482. XI. The verdict of the jury on each count was excessive as to actual and punitive damages and was the result of bias and prejudice of the jury against defendant. Callaway v. Fogel, 358 Mo. 47, 213 S.W.2d 405; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482.
Geo. F. Addison and A.W. Landis, Attorneys for Respondent.
For brevity and convenience certain points raised by defendant are consolidated and considered together. A. Defendant's Point I asserting error in admission of evidence under the allegations of the petition and challenging the sufficiency of such allegations is without merit. R.S. Mo. 1949, Sec. 509.210. B. The reference to membership in the Masonic Lodge, Defendant's Point II, and the question of remarks made by counsel in argument, Defendant's Point X, are not pertinent to a decision here because the ruling on each was such as to be within the discretion of the trial court. The court sustained objections made at the time, and took such action as appeared to be necessary. That discretion will not be disturbed unless abused, and here it was not abused. David v. Querman, 22 S.W.2d 58 l.c. 60 point 6. C. Defendant's Point III challenging the sufficiency of the evidence at the close of plaintiff's case, and Point V making the same challenge at the close of the whole case, are without merit. Nelson v. Wallace, 48 Mo. App. 193, l.c. 198. D. Defendant's Point IV is without merit. The trial court had authority to allow amendment of the petition to conform to the proof. Defendant did not request a continuance. R.S. Mo. 1949, Sec. 509.500; Carr, Mo. Civil Procedure, Sec. 215. E. Defendant's Point VIII setting up error in the giving of Instruction No. 7, can have no merit. The instruction does not attempt to direct a verdict, nor authorize one on any words spoken, but on its face shows it to be a definition of the words "publishing" or "publication" as those words are elsewhere used in instructions. F. Defendant's Point VI (g) complains of the Instructions 1, 2, 3, 4 and 5 because said instructions did not require the jury to find that the person in whose presence and hearing the slanderous words were spoken, "heard and understood" the words spoken. Defendant did not rely on a general denial, he plead the special defense of qualified privilege. By this he confessed the publication and seeks to avoid its consequences. He requested instructions on this theory and so submitted his case. He can not now adopt the new and inconsistent theory he attempts to assert. Hoeffner v. Western Leather Clothing Co. 161 S.W.2d 722; Hall v. Martindale 166 SW (2) 594; Griffith v. Products Co. 145 S.W.2d 431, l.c. 434, Points 2-4; Kelley v. National Lead Co. 210 S.W.2d 728; Polk v. M-K T R.R. Co. 111 S.W.2d 138, 341 Mo. 1213. G. The verdict was not excessive being for a total of $2000.00 actual and $2000.00 punitive damages. Hall v. Martindale, 166 S.W.2d 594, l.c. 608 point 31. H. All of the remaining points and sub-sections in defendant's brief resolve themselves upon the ruling of one question. Defendant pleads the defense of privilege. Two essential elements of this defense are "good faith" and "probable cause". On his total failure to sustain the burden of proving these two indispensable elements of privilege, the issue of privilege should not have been submitted to the jury. This forecloses his contention under Points VII and IX and under sub-sections a, b, c, e and f of Point VI for with privilege eliminated as a defense, it was not necessary to prove or instruct upon expressed malice nor to negative the abortive defense of privilege. Lonergon v. Love, 150 S.W.2d 537; Fisher v. Myers, 100 S.W.2d 551; Peak v. Taubman, 159 S.W. 656, 251 Mo. 290. I. "Appellate courts are courts of review, their prerogative being to protect litigants who have lost in the trial court by reason of prejudicial errors that may have occurred, but it is the express mandate of the statute (Section 140 Civil Code of Missouri, Mo. R.S.A. 847.140) that no appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant and materially affecting the merits of the action." Vanderhoff v. Lawrence 201 S.W.2d 509; see also Brinkman Realty Co. v. Diedesheimer, App. 201 SW and 503.
The petition, answer and reply in this case were filed in the Circuit Court of Crawford County, Missouri, but the case went to Howell County, thereafter, on change of venue. The time for filing transcript was extended.
The suit was for slander and libel. The original petition was in nine counts. The jury returned a verdict for plaintiff, (now respondent) on the first count of the petition, equally for compensatory and punitive damages, in the sum of $800.00, and a like sum, on the second, fourth, fifth and seventh counts. The total verdict for plaintiff, on all of the five counts of the petition, was in the sum of $4,000.00. The verdict returned June 24, 1950, was by nine jurors.
The third, sixth, eighth and ninth counts were dismissed by respondent. On July 1, 1950, appellant filed his motion for a new trial, which was overruled by the trial court on September 14, 1950. He filed his notice of appeal to this Court on the same date.
Although the case was set down for hearing in this Court on October 1, 1951, neither appellant nor respondent appeared for oral argument, and the case was submitted to this Court on briefs.
Respondent has filed in this Court his motion to dismiss the appeal on account of the alleged insufficiency of the appeal bond. That motion has been overruled by us.
The appellate jurisdiction of this Court is not questioned, since the respondent only had a verdict for $4,000.00 for both compensatory and punitive damages, although he originally asked for the sum of $75,000.00 on all nine counts of his petition.
Appellant has assigned a large number of claimed errors in his brief. Those assignments deal principally with the sufficiency of respondent's petition to state a cause of action, the admission of evidence by the trial court, its refusal to sustain appellant's demurrer, both at the close of respondent's case, and at the close of all of the evidence, and the giving of the instructions, on which the jury returned a verdict for respondent, on five counts.
A brief statement of the facts is required to understand the case. Appellant made the following statement in his brief, as applicable to each of the original nine counts of the petition.
"This is an action for slander which was filed in the Circuit Court of Crawford County, Missouri. On change of venue the cause was sent to the Howell County Circuit Court where, on the 22nd day of June, 1950, trial was had before a jury.
"The original petition contained nine counts of alleged slander, but at the close of plaintiff's testimony plaintiff dismissed Counts 3, 6, 8 and 9 and the issues were submitted to the jury on Counts 1, 2, 4, 5 and 7.
"Aside from the dates and the alleged slanderous words charged to have been spoken, each Count is identical in form and substance. In each Count plaintiff prayed judgment for $5,000.00 actual damages and $5,000.00 punitive damages.
"The jury returned a verdict in favor of plaintiff for $400.00 actual and $400.00 punitive damages on each of the five Counts submitted. Motion for new trial being filed and overruled defendant has duly perfected his appeal to this Court."
The first count of the petition charged that appellant, with malice, spoke of and concerning respondent that respondent had been stealing appellant's cattle, for which respondent asked compensatory and punitive damages in the sum of $10,000.00 on that count. The jury awarded respondent $800.00 on the first count, equally for compensatory and punitive damages. It made a like award to respondent on the 2d 4th, 5th and 7th Counts of the petition, or a total amount to respondent, on the five counts of his petition, in the sum of $4,000.00 equally for compensatory and punitive damages.
In Count I of his answer, appellant denied formally making the malicious statements charged to him, but stated that, if such statements were made by him, they were true, confidential and privileged and that respondent was not damaged thereby.
In Count II of his answer, appellant denied the statements alleged to have been made about respondent on the ____ day of March, 1948, in the presence and hearing of others, and stated that such remarks, if made by him, were true, confidential and privileged.
Count III of the answer need not be noticed further, as that count was dismissed by respondent.
Count IV of the answer, referred to the statements alleged to have been made by appellant on the ____ day of December, 1947, and at other times. The defense thereto was quite like the defense made to Counts I and II of the answer.
The answer of appellant to Count V of the petition was quite similar to the answers made to Counts I and II.
Count VI of the answer requires no consideration, since that count was dismissed by respondent. Count VII of the answer was in reference to statements alleged to have been made by appellant, on or about November 1, 1949, and was quite similar to the answers in Counts I and II.
Counts VIII and IX of the answer need not be further noticed, since those counts are no longer at issue.
The answers of respondent, to the interrogatories of appellant, tended to show that the words charged against respondent by appellant were made in the presence and hearing of persons, other than respondent, and at places denied by appellant in his answers. Such interrogatories need not be set out here. Denial thereof was formally made in respondent's reply.
A large number of witnesses testified for respondent. Their testimony tended to prove that appellant charged respondent with stealing his cattle and that respondent bore a good reputation in his home community, before such charges were made. Respondent denied stealing appellant's cattle and offered evidence, tending to prove his previous good reputation, and that the calves missing from appellant's herd died from natural causes.
(Johnson v. Thompson, 236 S.W.2d 1, l.c. 7; Bray v. St. Louis-San Francisco Ry. Co. 236 S.W.2d 758, l.c. 761; Rockenstein v. Rogers, 31 S.W.2d 792, l.c. 798; Ford v. Louisville National R. Co. 196 S.W.2d 163, l.c. 167.)
The verdict of the requisite number of jurors satisfies us that the testimony of respondent and his witnesses, which was of a most substantial character, was believed by the jury and we are not at liberty to disbelieve any of it.
Appellant makes the following statement in his brief:
"The answer, as filed by defendant, is identical as to the various Counts. After admissions and denials, as to certain allegations contained in the petition, such answer states:
"(1) That defendant has no recollection of making such statement and, therefore, denies that he made it.
"(2) That certain of plaintiff's cattle had been stolen and he was investigating the theft through the officers of the law; that any statements concerning the theft of his cattle were made in good faith and not maliciously spoken and, therefore, such statements were privileged.
"(3) That discussions were had by defendant with his employees to prevent future acts of larceny of his cattle and were made in good faith, therefore privileged communications.
"(4) As an alternative defense, that if such words were spoken, they were true in substance and in fact and denies that plaintiff has been damaged."
That statement of appellant shows conclusively that the facts testified to by respondent and his witnesses showed that appellant was at least reckless in his remarks about respondent's honesty.
The first assignment of error is that respondent failed to set out in his petition that the alleged slanderous statements were made in the presence and hearing of any other person or persons. Appellant cites cases, in supposed support of such assignment of error. An examination of the cases cited shows that it was held in all of such cases that the instructions, and not the petition, must require proof of such facts. Such assignment of error is without merit.
The second assignment of error, made by appellant, is that the trial court committed error because of the voluntary statement of respondent that he was a member of the Masonic Lodge. Appellant's objection to such testimony was sustained by the trial court. The respondent, as a witness, was cautioned by the trial court, and the jury was instructed, to disregard respondent's statement about respondent belonging to the Masonic Lodge. Still not satisfied with the trial court's sustaining of the objection to the testimony, the caution to the witness and to the jury, appellant still asked for a mistrial, which was disallowed. The verdict by nine jurors can now be the only excuse for such an assignment of error.
Appellant cites two cases, in supposed support of this contention, and they do not support it. In McClendon v. Bank of Advance, 174 S.W. 203, 188 Mo. App. 417, by the St. Louis Court of Appeals, respondent's counsel there insisted on getting the improper evidence before the jury, after the trial court had ruled that such testimony was not proper.
In Palmer v. Miller, 60 F. Supp. 710, Judge Reeves, of the Missouri Federal Court, merely indicated the impropriety of such conduct on the part of a litigant, without expressing any opinion on the action taken by the trial court. The cases cited by appellant are not on facts at all like those in this case.
Appellant's third assignment of error is that respondent failed to make a case by his evidence, because the statements attributed to appellant were privileged and not slanderous, if honestly believed to be true. The charge of the theft was not slanderous in itself, if made in good faith, but the issues of such good faith and the absence of actual malice were submitted to the jury in instruction "(c)" and the jury found, as a fact, that appellant was guilty of actual malice, and we hold that the trial court committed no error in submitting such question of fact to the jury.
Appellant complains of the action of the trial court in permitting respondent to amend his petition as to Count II of the petition, by changing the date of the alleged statements of appellant, from the time therein alleged, to another date, and appellant cited a large number of cases in supposed support of such assignment of alleged error. There is no showing that appellant asked a continuance on that account, and the amendment is not shown to have been objected to by appellant. Section 509.500 R.S. 1949, authorizes an amendment of the pleadings and seems to have been enacted in place of Section 969, to Section 974, of the 1939 Statutes of Missouri. The cases cited by appellant refer to an amendment of the petition to alleged statements made by other persons, of a different character. Those cases are not in point.
What we have held in regard to assignment of error No. III applies equally to assignment of error No. V.
Assignment of error No. VI applies to the instructions given by the trial court on Counts 1, 2, 4 and 5. The assignment applies also to Count III, but respondent had dismissed that count and it is unnecessary to consider appellant's objection in that respect.
The instructions on punitive damages, in Counts 1, 2, 4 and 5, were practically identical. We have carefully read those instructions. They authorized the jury to assess punitive damages, in addition to the actual damages on those counts, and were in the following language:
"You are further instructed in this connection that if you find a verdict for plaintiff in actual damages, then, you may, if you think proper, under all facts and circumstances shown in evidence, assess in favor of this plaintiff such further sum as exemplary or punitive damages as you believe ought to be assessed against the defendant by way of punishment for the act complained of, and to serve as a warning to prevent the defendant and others being guilty of a like act;"
None of the criticized instructions suggested the assessment of punitive damages. They required the jury to find definitely that the remarks of appellant were "willfully and maliciously spoken," before the assessment of punitive damages was authorized. Practically the same objection is made to Count 7 of the petition.
Hoeffner v. Western Leather Clothing Co. 161 S.W.2d 722, cited by appellant, does not support appellant's contention. There Judge Bennick, then Commissioner, but now Judge of the St. Louis Court of Appeals, at page 729, said:
"The next instruction criticized is plaintiff's instruction No. 2, which told the jury that if they found that Floom had spoken of and concerning plaintiff, in the presence and hearing of persons other than plaintiff and himself, the words, `She's a crook and a thief', then the law presumes that such words were spoken maliciously, and it was not necessary to prove any express malice in order to warrant a verdict for plaintiff."
The case of Bouligny v. Metropolitan Life Ins. Co. 133 S.W.2d 1094, cited by appellant, was by Judge McCullen of the St. Louis Court of Appeals. It was not a slander and libel suit and did not even involve punitive damages, and is not in point. Nor was State ex rel. Hartford Fire Ins. Co. v. Trimble, et al., 250 S.W. 393, 298 Mo. 418, written by Commissioner Railey, a slander and libel suit. That was a certiorari case against the Kansas City Court of Appeals. We are not cited to any expression by Judge Railey, in agreement with appellant's contention. That opinion certainly is not in point in this case.
The assignment, that none of those instructions set out the date the statements authorizing imposition of punitive damages were made, is of no value, because each of those instructions authorized the imposition of punitive damages, if actual damages were found to be justified for statements, on the dates mentioned therein.
Complaint is made because each of such instructions authorized the imposition of punitive damages, when the financial condition of respondent was considered, in connection with the actual damages found by the jury. The Missouri case cited is quite to the contrary of appellant's contention. That case was Bolles v. Kansas City Southern Ry. Co. 115 S.W. 459, written by Judge Johnson of the Kansas City Court of Appeals. There Judge Johnson said:
"Nor do we find error in the admission of evidence of the pecuniary condition of plaintiff. The rule is well settled in this state that such evidence is admissible in an action for personal injuries where the circumstances of the case authorize the assessment of punitive damages. Beck v. Dowell, 111 Mo. 506, 20 S.W. 209, 33 Am. St. Rep. 547; Dailey v. Houston, 58 Mo. 361."
The remaining objections to the instructions, authorizing the imposition of punitive damages in the counts submitted to the jury, are equally without merit.
The 7th assignment of error is directed to instruction on Count VI. As respondent dismissed that count of the petition and no instruction was given on it, and the jury returned no verdict for compensatory or punitive damages thereon, the assignment need not be considered.
As to assignment of error No. VIII, the jury was distinctly instructed that the statements made must have been made, within two years before suit was filed December 20, 1949. Such instruction did not constitute a "roving commission" to the jury to consider statements made at other than the times alleged in the various counts.
Assignment of error No. IX complains of instruction No. 8. That instruction was short and dealt with the necessity of proof of actual malice, and should be set out. It was as follows:
"You are instructed that if you believe and find from the evidence that the matter complained of was falsely published of and concerning the plaintiff, then the law presumes that it was done maliciously, and, it is not necessary to prove any express malice in order to warrant a verdict for plaintiff."
Such has been the regular holding of our courts. When the commission of crime is falsely charged, malice is presumed.
Appellant complains of the argument of one of respondent's attorneys in stating that the case had originated in Crawford County, Missouri, and was afterwards brought to Howell County on change of venue. We are unable to see how appellant could possibly have been prejudiced by such an argument. However, the assignment amounts to nothing, since appellant stated that the trial court mildly rebuked respondent's attorney for making such remark.
We have not been cited to any authority which suggests to us that the trial court committed any error in trying this case, and its judgment should be affirmed.
It is so ordered. Vandeventer, P.J., and McDowell, J., concur.