Vaughn v. May

*621 BRADLEY, J. Plaintiff filed his petition in Polk county to recover damages for an alleged slander. The venue was changed to Greene county where a trial was had before the court and, a jury, resulting in a judgment in favor of. plaintiff for $1000 from which defendant appealed. During the World War defendant’s son was inducted into the service. Because of physical infirmities of the son defendant diligently sought his discharge, and was finally successful. Defendant’s activities and the son’s discharge aroused some feeling and resentment. Finally on a night in July, 1922, defendant’s store windows, store front, garage door and truck were smeared with yellow paint. Defendant was indignant and endeavored to ascertain who was responsible for the paint *622 ing. It is alleged that defendant, having reference to the painting and to plaintiff said in the presence of others: “It was Tommy Vaughn who'done the painting.” It is contended that the act of painting defendant’s property in the manner charged constituted the crime of malicious mischief under section 3383, Revised Statutes 1919, and that defendant’s words, supra, spoken of and concerning plaintiff and under the circumstances obtaining, charged plaintiff with the crime of malicious mischief, and, therefore, constituted actionable slander. The answer is a general denial. Error is predicated on the petition, the sufficiency of the evidence and on the instructions. At the beginning of the trial defendant objected to the introduction of any evidence on the ground that the petition failed to state a cause of action, was overruled and saved his exception. In this manner of challenge every intendment will be indulged in favor of the petition after verdict. Defendant’ bottomed his ore terms demurrer on two grounds. First, that the words alleged to have been spoken by him do not per se charge a crime, and that the petition does not contain the required colloquium; and second, that there is no allegation that plaintiff had no interest in the property alleged to have been painted. After alleging the words claimed to have been spoken by defendant and in whose presence spoken, plaintiff alleged as follows: “Plaintiff further states that the defendant by said -language intended to and did charge this plaintiff with having committed crimes in this: That he intended- to and did charge that plaintiff painted defendant’s store front, store windows, garage door and truck with yellow -paint, and thereby injured and destroyed said property, and thereby committed malicious trespass. . . . and plaintiff states that the said language was so understood by the said W. B. Palmer and L. A. Munshower. and diver's other persons, and that defendant intended by said language to charge plaintiff with being a violator of the law and a law-breaker and a *623 criminal, and that said language was so understood by the said W. B. Palmer and L. A. Munshower and said divers other persons at the time.” We think the petition is good against the complaint that there is not sufficient extrinsic averments showing the slanderous character of the language when applied to plaintiff. [Parsons v. Henry, 177 Mo. App. 329, 164 S. W. 241.] *624 Defendant contends that the evidence is not sufficient to support a judgment, and that his requested instruction in the nature of a demurrer should have been given. The demurrer is predicated upon three propositions. First, that there was no injury to defendant’s property shown, and no crime committed, and therefore, no crime imputed by the language alleged to have been used by defendant; second, that in order to constitute actionable slander the crime charged must be within the scope of the acts denounced by section 3612, Revised Statutes 1919; third, that there was no evidence that any one understood that, by the language used,, or alleged to have been used, defendant charged or imputed to plaintiff the offense of malicious mischief. The first contention that there was no material injury shown is founded upon the language of section 3383, Revised Statutes 1919. If the painting of defendant’s property was not a crime, then, of course, he did not charge plaintiff with a crime. The evidence shows that the property was smeared with yellow paint. Section 3383 makes it a misdemeanor, the punishment for which may be a fine or imprisonment in the county j ail to ‘ ‘ willfully and maliciously destroy or injure the door or window of . . . any store,” etc. Defendant contends that the painting neither materially injured nor destroyed, and that no crime was committed. Did the painting injure the property as that term is used in section 3383? In Mitchell v. State, 62 S. W. (Tex.) 572, defendant was charged under a malicious mischief, statute with unlawfully and willfully injuring a public *623 The petition does not charge that plaintiff had no interest in the property painted. An indictment' or information for malicious mischief under section 3383, Revised Statutes 1919, which fails to allege that the defendant had no interest in the property, is -fatally defective. [State v. Crenshaw, 41 Mo. App. 24.] Failure to allege that the defendant had no interest in timber cut and carried away precludes the assessment of treble damages under section 4242, Revised Statutes 1919. [O’Bannon v. Railroad, 111 Mo. App. 202, 85 S. W. 603; Mishler Lumber Co. v. Crain, 112 Mo. App. 454, 87 S. W. 41.] But we do not think that plaintiff’s petition is so lamed by the failure to allege a lack of interest on the part of plaintiff in the property painted as to render it vulnerable to a demurrer ore tenus. The petition charges that some person or persons painted “the store windows, store front, garage door and truck of defendant.” The petition further charges that “defendant on the next day after Ms property had been painted as aforesaid,” etc. The petition goes on and charges that defendant imputed to plaintiff the crime of malicious mischief. The expressions property of defendant, Ms property, malicious miscMef, as used in the petition would indicate that plaintiff had no interest in the property painted. Indeed defendant could not by any language charge plaintiff with the crime of malicious mischief for painting the property, if plaintiff had an interest in the property. After verdict absent any challenge except an ore tenus demurrer, every intendment is invoked in favor of the petition. When plaintiff’s petition is measured by this well-known rule we do not think it fatally defective. Where omitted *624 allegations may be implied from the allegations made in the petition then the defect of omission is cured after verdict. [Powell v. Rawson Land Co., 221 S. W. (Mo. App.) 765; Shaler v. Van Wormer, 38 Mo. 386; Keaton v. Keaton, 74 Mo. App. 174; Wisecarver v. Ins. Co., 137 Mo. App. 227, 117 S. W. 698; Peoples Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032; Robinson v. Levy, 217 Mo. 498, 117 S. W. 577; Reineman v. Larkin, 222 Mo. 157, 121 S. W. 307.] *625 school building. The following definition of injure was there approved: “The word ‘injure’ as used herein and meant by law is an injury which would render said build? ing less agreeable, useful or comfortable for the purpose for which it was intended.” We think that this definition is correct and adopt it as the meaning of the word injure in our statute, section 3383. Applying this definition of injure it is our opinion that smearing defendant’s property with yellow paint as shown by the evidence was a misdemeanor under section 3383. In order to constitute actionable slander in charging one with the commission of a crime is it essential that the crime charged must be one denounced by section 3612, Revised Statutes 1919? Section 3612 reads as follows: “Eivery person who shall falsely and maliciously charge or accuse any female of incest, fornication, adultery, or whoredom, by falsely speaking of and concerning such female, in the presence and hearing of any other person or persons, any false and slanderous words which shall impute to her any such offense, or who shall in like manner falsely and maliciously charge any person with incest, or the infamous crime against nature,,or with any felony, the commission of which would subject such person to disfranchisement and other degrading penalties, shall be deemed guilty of a misdemeanor. ’ ’ Section 3612 sets out those acts for which one may be prosecuted criminally for the offense of slander. There are many misdemeanors of which one might be falsely charged or accused and yet have no redress against the accuser in a criminal prosecution. Plaintiff could not have successfully prosecuted defendant for charging him with having committed the offense of malicious mischief, because the offense of malicious mischief is not embraced within section 3612. We find no case in this State supporting defendant’s contention respecting the point in hand. The courts, it seems, have ruled otherwise. [Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 325, l. c. 328; Bundy v. Hart, 46 Mo. l. c. 462; Callahan v. Ingram, *626 122 Mo. 355, l. c. 368, 26 S. W. 1020; Boyce v. Wheeler, 197 Mo. App. l. c. 303, 195 S. W. 84; Caffey v. Moffatt, 246 S. W. (Mo. App.) 51.] In Curry v. Collins, supra, the court uses the folio-wing language: “as to what words are in themselves actionable, the general rule would seem to be, that the charge contained in them must be such that, if true, it would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment; (Brooker v. Coffin, 5 Johns. 1919; Martin v. Stillwell, 13 id. 275) but as many offenses are indictable as misdemeanors, not necessarily involving moral turpitude or any infamous punishment, it has been held that the rule that is most safe and certain in its application is, that words are in themselves actionable which impute an indictable offense for which corporal punishment may be inflicted. [Birch v. Benton, 26 Mo. 153.]” It is stated in Birch v. Benton, supra, that words are in themselves actionable which impute an indictable offense for which corporal punishment may be inflicted as the immediate punishment, and not as the consequence of a failure to satisfy a pecuniary penalty. We construe this to mean that the crime imputed must be punishable in the first instance by imprisonment in order for the words imputing the crime to constitute actionable slander. One convicted of the crime of malicious mischief may be punished in the first instance by imprisonment in the county jail. [See Sec. 3417, R. S. 1919.] Therefore words imputing the crime of malicious mischief constitute actionable slander. Plaintiff’s chief instruction predicated recovery upon the theory that the alleged slanderous words were spoken in the presence of the witness Munshower; that said words imputed to plaintiff the crime of malicious mischief, and were so intended by defendant and so understood by Munshower. The words alleged to have been spoken and as set out in the instruction were not action *627 able per se. Hence it was necessary to plead and prove how the words were understood. Plaintiff so recognized this necessity as appears from his petition and his instruction. But there is no ev-idence in the record as to Munshower’s understanding of the words alleged to have been spoken. Such evidence was necessary and competent. In Lewis v. Humphries, 64 Mo. App. 471, the court used this language: “The rule to be deduced from the authorities to be presently cited, including those of our own State, is that, in an action where the words are not obviously slanderous, that, in order to entitle plaintiff to recover, first, he must allege and prove that the words were actually used in an actionable sense and were applied to plaintiff; second, that the hearers so understood them, and upon this latter point the testimony of the hearers as to how they understood them is admissible.” The same rule is again stated in Williams v. Turnbull, 232 S. W. (Mo. App.) 172, as follows: “There is no longer any doubt that words which do not on their face alone impute the wrong, or do not (as here) obviously or necessarily charge a criminal offense, must be alleged to have been spoken in an injurious sense and to have been so understood by the hearers, and the proof admitted under this allegation was wholly proper. It must be remembered that this is an action for slander and not one for libel.” In plaintiff’s instruction No. 1 the jury was required to find, before finding for plaintiff, that defendant said of and concerning plaintiff “it was Tommy Vaughn who done the painting or substantially the same words,” etc. Strenuous objection is made to the word substantially. The identical words laid in the petition must be proved or enough of the words must be proved to constitute the slanderous charge imputed or charged to have been imputed in the petition, and it will not be sufficient to prove words of similar import. [Clements v. Maloney, *628 55 Mo. l. c. 357; Haynes v. Robertson, 175 S. W. (Mo. App.) l. c. 292.] We do not approve this instruction; but defendant is in no position to complain, because lie made tbe same error. In defendant’s instruction A the jury was told that “the plaintiff must prove to the satisfaction of the jury by a preponderance of the evidence that the defendant uttered the words charged as slanderous or substantially those words in the petition as set out in the instructions, and proof that he uttered equivalent words or words of similar import will not do.” Defendant contends that since he followed the objectionable language in his instruction with the direction that equivalent words or words of similar import would not do, that he should escape the penalty imposed upon an appellant for making the same error as the one of which complaint is made. We do not believe that such following up as here is sufficient to avoid the consequence sought to be avoided. The cases are a unit in holding that an appellant cannot successfully complain of an error where he is guilty of making, the same error. This rule of course is general, and is not confined to slander cases. Complaint is made of instruction No. 3 given for plaintiff because of the use of the word think. We do not deem it necessary to rule on this assignment. If the cause is again tried the objectionable feature if this instruction will no doubt be eliminated. Defendant asked instruction E, which was refused. This instruction is as follows: “The court instructs the jury that if you find from the evidence that defendant in answer to all inquiries about who did the painting said that all he knew as to who painted his store was that the dogs went to Tommy Vaugh’s and Okey Adams’ and his language was so qualified then your verdict must be for defendant C. L. May.” This instruction was based on the evidence of defendant, and submitted his theory. Plaintiff says that the refusal of this instruction was proper because it is a *629 comment on the evidence. Clearly in a slander case such an instruction is not a comment on the evidence. No more is it such than is plaintiff’s instruction No. 1. Plaintiff’s instruction submits the language which plaintiff claims that defendant used. Instruction E submits the language defendant testified that he used. We think that instruction E should have been given. [Rooker v. Railroad, 204 S. W. (Mo. App.) 456; Boles v. Denham, 208 S. W. (Mo. App.) 480; Smith v. Southern, 236 S. W. (Mo. App.) 413; Jennings v. Cooper, 230 S. W. (Mo. App.) 325.] We might here say that plaintiff, if the cause is retried, should omit his instruction No. 2. There was no issues raised justifying; this instruction. Also that the words “or secured some person to paint the defendant’s store windows, garage door and truck” as appear in plaintiff’s instruction No. 1 should be eliminated. There is nothing in the pleadings or in the evidence to justify such language in the instruction. Plaintiff sued for $3500. The jury returned a verdict for $2500. On motion for a new trial the trial court required a remittitur of $1500 and entered judgment for $1000. The only elements of damage submitted in plaintiff’s instruction No. 3 on the measure of'damages were mental anguish and humiliation. The trial court filed a written opinion which is printed in plaintiff’s statement and brief; and in this opinion the reason for limiting the elements of damage to mental anguish and humiliation, is given. The court said: “The court is . . . . doubtful as to whether or not the speaking of the slanderous words to one man would be regarded by the law as sufficient publication to constitute a basis for injury to reputation.” It is contended that the judgment entered after the remittitur is still excessive when measured by the mental anguish and humiliation suffered by plaintiff, a boy seventeen years of age, because defendant falsely accused him of doing the painting. There is no definite rule by which to be guided. *630 In Vogel v. Bushnell, 203 Mo. App. loc. cit. 633, 221 S. W. 623, a cause in libel, the court said that there was no scale by which the damages can be measured. “They admit of no other test than the intelligence of the jury governed by a sense of justice , . . What is mortification, humiliation and injured feelings. to one man is not necessarily so as to another. If the cause is retried plaintiff is entitled, if he so requests, to- have included among the elements of damage injury to his reputation. The law fixes no. standard as to the number of persons who must hear and understand the alleged slanderous words. One is sufficient. [Allen v. Edward Light Co., 209 Mo. App. loc. cit. 173, 233 S. W. 953, 25 Cyc. 365, 366, 366J, 1223.] In view of another trial it is not necessary to rule on the question of excessive damages. The judgment should be reversed and the cause remanded, and it is so ordered. Cox, P. J., and Bailey, J., concur.