# Kersting v. White > Missouri Court of Appeals · May 17, 1904 · 107 Mo. App. 265 URL: https://www.frixlaw.com/law-library/cases/8263726 ## Case - **Full name:** KERSTING v. WHITE - **Court:** Missouri Court of Appeals - **Decided:** May 17, 1904 - **Citations:** 107 Mo. App. 265; 80 S.W. 730; 1904 Mo. App. LEXIS 258 - **Precedential status:** Published - **Opinion:** Concurrence by Groode - **Judges:** Bland, Goode, Groode, Reyburn - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8263726 ## Opinion text GrOODE, J. (concurring). — As this case has received great attention I will state separately my reasons for concurring in the result. The abandoned answers were the. only evidence introduced by plaintiff to show defendant ever made a statement derogatory to her character. Those answers contain an admission that the defendant had stated to one Edward Henry, who had made sipiilar statements to the defendant, that Mrs..Ward had said her father J. C. Elms, was “living in sin at the house of said Elms,” and other statements tending to show plaintiff was a participant in the sinful life of said Elms. One of-the answers contains the following allegation: “And this defendant further states that at the time he mentioned said statement (viz., Mrs. Ward’s) to said Henry, he, said Henry, made a.statement to defendant that he had heard said charge and’said statement of said lady made and that he believed it to be true when he heard it before.” All the defendant did to put any slander concerning the plaintiff into circulation was to repeat to Henry that he (defendant) had heard of a statement made by Mrs. Ward which Henry told defendant of hearing previously. That defendant repeated the statement to any other person or that what *284 defendant said went beyond Henry, there was no evidence to prove. Whether an alleged slanderous communication is privileged is matter of law for a court to determine when the circumstances and the occasion of the communication are undisputed. Newell, Slander & Libel, par. 9, p.391; Townshend, Slander & Libel (4 Ed), sec. 288; Callahan v. Ingram, 122 Mo. 355 ; Wagner v. Scott, 164 Mo. l. c. 302. The rule is perhaps modified by our statute making juries in such cases judges of both the law and the facts. If the circumstances under which the words were spoken are in dispute they must be found by the jury, and it is then proper to give a hypothetical instruction that if the jury find the words were spoken on a given occasion and under certain circumstances (namely, such as render the words privileged) the verdict must be for the defendant. But words which would enjoy a qualified privilege when uttered in good faith and without actual malice, are actionable if the motive was slanderous or if they were known to be untrue. Newell, par. 9, p. 391; Wagner v. Scott, 164 Mo. 302 . And malice may be implied from the fact that the statement was false. Callahan v, Ingram, Wagner v. Scott, supra. The alleged slander of which the defendant was accused was actionable per se. Stieber v. Wensel, 19 Mo. 513 ; Hudson v. Garner, 22 Mo. l. c. 423. There is conflict in the cases as to whether the defense of privilege can be availed of under a general denial or must be specially pleaded. The following authorities hold that a special plea in bar is not necessary to raise the defense of a privileged occasion in an action for slander, but that evidence in support of that defense may be given under the general issue. Newell, p. 449 and citations in note; Atwater v. News Co., 67 Conn. 504 ; Fero v. Rusco, 14 Comstock (N. Y.) 162; Johnson v. Brown, 13 W. Va. 71 . These authorities hold that it is not available unless specially pleaded. Gilman v. McClatchy, 111 Calif. *285 606; Hess v. Sparks, 44 Kas. 470 ; Goodman v. Daniels, 89 Mass. 61 . Bnt even if it is necessary to plead the privilege in order to let in evidence to establish that defense, it would seem that if a plaintiff proves facts showing the communication was privileged, the defendant ought to be permitted to avail himself of it. Moore v. Bank, 51 Hun 472 . The answers introduced by plaintiff to substantiate her case showed the alleged slanderous words were spoken under circumstances which justify the ruling that they were privileged unless the defendant’s motive was malicious. It is true the plaintiff was not a member of the religious society to which the defendant belonged; but Elms, of whom the words were spoken and Henry, to whom they were spoken, were. The facts tend to show "White was , consulting with Henry in good faith as a member of that society about a rumor in regard to Elms, another member, which rumor involved the plaintiff’s name. That she was not a member of the society is immaterial if White acted in good faith. Etchison v. Pergason, 88 Ga. 620 . Nor is it material whether the society was a church or not. It was a voluntary association of persons pledged to maintain good morals among the members. 18 Am. & Eng. Ency. Law (2 Ed.), 1035; Barrows v. Bell, 7 Gray 301 , 66 Am. Dec. 479 . If the alleged slander was spoken by White to Henry under the circumstances stated in the answers, it was innocently done and may well be held to come within the class of statements enjoying a qualified privilege. Plaintiff might have contradicted the allegations of the answers as to the circumstances attending the utterance of the alleged slander by other evidence; but they were not contradicted. The crucial question is how far were the statements in the answers which were put in evidence by plaintiff, binding on her as to the circumstances surrounding the utterance of the slander and White’s motive? If they are conclusive as to those points, the plaintiff’s cause is defeated by them. But I think they were only evi *286 deuce for the jury to weigh. Plaintiff swore the accusation against her character was false and if the jury so found, malice would be inferable from that fact alone, subject to rebuttal by showing the occasion justified the defendant in speaking. Newell, p. 391, par. 9. The allegations in the answers of a laudable motive on the part of White were to be considered, along with the falsity of the charge, on the issue of malice or good faith and as to whether the words were spoken under circumstances that rendered them privileged. Greenleaf says of such evidence: “It does not follow that all the parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him. ’ ’ As to the defense that White only repeated a charge made by Mrs. Ward, giving her name at the time as his authority, White’s motive is important. One may repeat a slander as the utterance of another and nevertheless be liable if he does so knowing the statement is untrue and from a desire to injure the person slandered. This was decided in the case relied on by defendant : Church v. Bridgman, 6 Mo. l. c. 193. But if a person repeats a slanderous remark with no evil intention and gives his informant’s name, he may plead the fact-in mitigation of damages, not in justification. Newell, p. 894. Improper testimony was received to show the damages plaintiff sustained. The real source of the slander was Mrs. Ward; and while the defendant was liable for repeating it in a way to injure the plaintiff, it is difficult to see how his doing so could work substantial damage, as Henry was apprised of all the facts and had told the defendant more in derogation of plaintiff’s character than defendant told him. I agree that *287 the testimony in regard to the demeanor of the Buss family to the plaintiff was incompetent and very prejudical. No showing was made that any member of that family ever heard of "White’s statement to Henry or that any one but Henry ever heard of it. To allow the jury to conjecture that what White said to Henry caused the Buss family to alter their behavior to the plaintiff, in view of the fact that the rumors against her were so general that there had been an investigation! of their truth by a society of the community, was palpably erroneous and amounts to holding the defendant responsible for conduct of other people which he may have had nothing to do with. I can think of no rule by which that evidence was admissible. The judgment against the defendant ought to be reversed and the cause remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8263726. Public record. Not legal advice.