McMurry v. Martin

EllisoN, J. This is an action for libel in which it is alleged that£ £ defendant composed, dictated, wrote, and published, and caused, procured, and requested to be written and published of, and concerning, the female plaintiff, the following false, slanderous, and libelous words, that is to say: £ I received a letter from old Mrs. McMurry.’ £ She is like an old sheep and has twins at every litter.’ £ She stinks like old cheese.’ £ She stopped at my house once to warm her titties.’ £ Her teeth are like an old goat’s.’ ‘Her témples are like fine-cut tobacco.’ £ She has invited me up to her house to play hide and seek with her.’ £The men in the neighborhood are going to establish a post office of their own, in order that their wives may not get the letters which old Mrs. Mc-Murry sends them.’ £ She is like an old ewe, bringing forth twins at every litter.’ ” ■ After all the evidence was in on both sides, the court permitted the plaintiffs, against the objection of the defendant, to amend their petition, as follows: “Mrs. McMurry, I received your kind epistle, and was surprised to hear from you so soon. Thine eyes are like black walnuts in a frog pond. Thy teeth are like a flock of sheep just fresh from the wash, whereof each one bears twins. Thy temples are like lemon peels in thy locks. Thy garments are as the smell of old cheese. Set me as a seal upon thy heart and upon thy arm. Turn thine eyes from me, for thy heart ravishes my heart. Thy friendship to me is far better than wine. [442] You forget the time you stopped at my house to warm your breasts, and the time you came up the orchard to see my plum butter. Thy hair is as fine-cut tobacco.” There was a verdict and judgment for plaintiffs, and defendant appeals. Defendant contends that the words, as set forth in the petition or amendment, were not libelous per se. The question as to what is, or is not, libelous, has been so often before the courts of this state that we will not again go into a detailed investigation of the subject. We said, in Hermann v. Bradstreet Co. (19 Mo. App. 227), that “the presumption that words are defamatory arises much more easily in cases of libel than in cases of slander.” In that case, we likewise quoted from the decisions of our supreme court, the following definition, viz: “A libel is a censorious, or ridiculous writing, picture, or sign, made with a mischievous and malicious intent towards government, magistrate, or individual; ” that “ any printed publication thattends to bring aman, into disrepute, ridicule, or contempt, is a libel in a legal sense.” The words herein set out were written of a female and I have no doubt of their being actionable. The amendment was properly allowed by the court, conforming the petition to the proofs. If defendant was not ready to meet the case as amended, his remedy would have been an application for a continuance. Instruction number one for plaintiffs contains an error, for which the case must be reversed. It instructs as to the original matter in the petition when there is no evidence to sustain it. The evidence, as presented in the abstract, not denied by the plaintiffs, not only does not support the original charge, but affirmatively shows the language was not contained in the letter. The judgment will be reversed and the cause remanded. All concur.