Imágenes de páginas
PDF
EPUB

the destruction of that unity by divorce necessarily makes the tenants by the entirety 239 tenants in common; that the barrier of unity thus being removed, partition could be had between such tenants in common with the same facility and results as between other like tenants, and this upon the principle of the maxim, "Cessante ratione cessat ipsa lex." The lower court took the same view of the matter, and ordered partition to be made, and we affirm the judgment.

All concur.

ENTIRETIES-EFFECT OF DIVORCE ON THE ESTATE. -A tenancy by the entireties, on the divorce of the husband and wife is destroyed, and the property which was subject thereto vests in them as tenants in common: Hopson v. Fowlkes, 92 Tenn. 697; 36 Am. St. Rep. 120, and note, with the cases collected.

CALLAHAN V. INGRAM.

[122 MISSOURI, 355.]

SLANDER-PRIVILEGE-DISCUSSION OF OFFICIAL CONDUCT.-A member of a city council, during a session thereof, is not privileged to falsely call another city officer a "thief," although the term is intended to apply to his official conduct, if there is no inquiry pending or proposed as to such conduct. 8LANDERPRIVILEGE- QUESTION OF LAW. In an action of slander the question whether the occasion on which the words were spoken was such as to make the communication one of privilege is always a question of law for the court, when there is no dispute as to the circumstances under which it was made. SLANDER-INNUEN DO.-The office of an innuendo in a declaration for slander is to set a meaning upon words or language of doubtful or ambig. uous import; and which, if taken alone, are not actionable. In case the defamatory meaning is apparent from the words used no innuendo is

necessary. SLANDER-INNUENDO.--If the words alleged as slanderous are actionable per se an innuendo limiting their meaning may be disregarded. SLANDER-INNUENDO, WHEN DISREGARDED.-A declaration falsely made that a person is a "downright thief" is slanderous and actionable per se, and, if alleged with an innuendo, is ground for recovery of damages, without proof that the words were spoken in the sense alleged in the innuendo. SLANDER-IMPLIED MALICE.-EXEMPLARY DAMAGES may be recovered in an action for slander when defamatory words are spoken with implied malice, as well as when they are spoken with express malice, and malice is implied from the willful utterance of falsehoods concerning another, whereby injury is done to his character. SLANDER-EXEMPLARY DAMAGES-QUESTION FOR JURY.-Exemplary damages may always be given in actions for slander when the defamatory words are maliciously spoken, but whether such damages should be

given in any case is a matter within the discretion of the jury. If the defendant has put in evidence circumstances tending to rebut malice, exemplary damages can only be awarded in case the jury is satisfied that the words were maliciously spoken, and the jury should be so instructed. SLANDER-DAMAGES EVIDENCE IN MITIGATION.-Evidence of the intention and motive of the defendant in slander in speaking the defamatory words is admissible in evidence for the purpose of mitigating the punishment, by way of exemplary damages, but not for the purpose of mitigating the actual damages. SLANDER MALICE EVIDENCE. In an action for slander statements by others than the defendant about the matter respecting which the slanderous words were spoken are admissible in evidence to show want of actual malice.

SLANDER EVIDENCE.-In an action for slander a person who heard the defamatory words uttered cannot testify as to his understanding of their meaning.

Thompson & Wilcox, for the appellant.

H. Bell and W. Adams, for the respondent.

The petition

360 MACFARLANE, J. Action for slander. charged that on the 4th of November, 1889, plaintiff was appointed superintendent of streets of Kansas City, which was an office of honor and trust, under the charter and ordinances of said city. That on said date, at a meeting of the common council of said city, in the presence of divers persons, naming other members of said council, and the clerk thereof, and other persons then present, defendant "falsely and maliciously spoke and published of and concerning the plaintiff the false and malicious words following, to wit: 'Now, I want to say something, and I want the reporters to get it. The superintendent of streets, this Callahan, is a downright thief, and I can prove it.'"

The petition further charged that, at the time the words were spoken, there was not then pending before said council any ordinance, motion, resolution, or report referring to plaintiff or the office so held by him. "That defendant meant and intended by the use of said words so spoken and published by defendant as aforesaid to charge plaintiff with being guilty of willful, corrupt, and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity as such superintendent of streets or under color of his said office. Plaintiff further states that, at the time said words were so spoken by defendant, the defendant well knew the same to be false, and said words were so spoken by defendant wantonly and maliciously, and with the intention of injuring

plaintiff"; that the words spoken 361 were false, and plaintiff was "greatly injured in said office and in his feelings, good name, and reputation."

The answer was a general denial and a special plea, as follows:

"For a second and further answer to plaintiff's amended petition defendant says that, at the time the supposed defamatory words were spoken by defendant, the lower house of the common council of Kansas City, being regularly in session, were discussing the office of superintendent of streets, and the actions and methods of Superintendent Callahan, the plaintiff. It had been stated by different members of the council that he was an inefficient and incompetent officer, and had been guilty of misconduct, oppression, partiality, and abuse of authority, in his official capacity. During this discussion the defendant, in the discharge of his duty as a member of said common council in discussing the official conduct of plaintiff, stated that the resolution previously introduced by him to investigate the city officials was aimed at Superintendent Callahan; that said Callahan, in his official position as inspector of curbing, had condemned curbing that was being put in by one party, and permitted another man, a favorite of said superintendent, to put in the same stone, entailing loss on the first man, and bestowing official favors on the second; that he had also given acceptances for curbing put in by one man to another, knowing at the time he gave the acceptances that the person to whom he gave them had not done the work, and was not entitled to them, thus enabling the second man to collect pay for work done. by the first, and defrauding one man, to put money into the pocket of a favorite of said Callahan.

"Defendant, in stigmatizing such conduct as dishonorable and dishonest, applied the term 'downright thief' to said superintendent. Defendant says that this 362 statement was made in the discharge of his official duty as above set forth, and without malice or ill-will to plaintiff, and that he had good reason to believe, and did believe, that the statements he made were true, and that the opprobrious epithet he used was a just and fair characterization of such official misconduct.

66 Defendant further states that the circumstances above referred to are as follows: In June, 1887, John Henry had a private contract to put in about eighty-two feet of curbing for F. J. Baird on Twentieth street, between Southwest Boulevard and

Broadway; that said Henry did said work and put in said curbing, and said Callahan, though knowing that said Henry had done said work, issued acceptances to one Bashford; that in the fall of 1887 Johnson and Thompkins were putting in curbing on Sixteenth street, between Penn and Broadway, and that they got the curbing of Richard Cummins; that said Callahan condemned some of said stone, and said Cummins sold it to one Bashford, and Callahan allowed him to use it for curbing on another street." The reply was a general denial.

The evidence showed that plaintiff was, on the fourth day of November, 1889, superintendent of streets, and defendant was a member of the city council; that defendant had previously held the office of inspector of curbing and sidewalk construction; that some time previously defendant had introduced in the lower house of the council, of which he was a member, a resolution, bearing on plaintiff's official conduct, which had passed that house and gone to the upper house, where it then remained undisposed of. On this occasion a member raised a question of privilege, and a general discussion and criticism of plaintiff's official conduct followed, in which defendant spoke the words attributed to him, making special reference in what he said to the alleged misconduct set up in his special plea. 363 At the time no resolution, ordinance, motion, or report was before that house respecting plaintiff or his official conduct.

On the trial defendant offered to prove that those present who heard defendant's language understood it to refer to official misconduct of plaintiff in the matters referred to. He also offered to prove the reasons and motives which induced him to speak of plaintiff as he did. These offers were refused by the court.

Defendant, in support of his special plea, undertook to prove that, while plaintiff was inspector of curbing, he issued to one party a certificate for curbing put in by another. Under the ordinances the engineer was required, after completion of work, by the owner of the property charged therewith, to grant a certificate of the fact, which, when filed, exonerated the owner from liability to pay for the improvement. Defendant offered in evidence a certificate of that character, which showed that the measurement had been made by plaintiff as inspector, but without designating who

had done the work. The court refused to permit this certificate to be read in evidence.

At request of plaintiff the court gave the jury the following instructions:

"1. The jury are instructed that, if they believe from the evidence that on November 4, 1889, the plaintiff, acting as superintendent of streets of Kansas City, and that defendant Ingram was a member of the common council of Kansas City, and at a meeting of the lower house of the common council, and in the presence of various people, the defendant maliciously used the following language of and concerning the plaintiff in his character of superintendent of streets, namely: 'Now, I want to say something, and I want the reporters to get it. The superintendent of streets, this Callahan, is a downright thief, and I can prove 364 it.' And, if the jury further believe that said language was false and untrue, then the said jury should find for the plaintiff.

"2. Malice does not consist alone in personal spite or illwill, but it exists in law wherever a wrongful act is intentionally done without just cause or excuse.

"3. The court instructs the jury that the defendant is not protected in this action from liability for the words used by him against plaintiff by reason of having uttered them in the chamber of the lower house of the common council of Kansas City.

"4. The jury are instructed that, in making their verdict, they may take into consideration all the facts and circumstances as detailed by the witnesses, and if the jury find for plaintiff in estimating the damages, which they may think plaintiff has sustained, the jury may take into consideration and allow the plaintiff, for the mortification to his feelings, suffered from the act of defendant complained of, and may add thereto as punitive damages such amount as will adequately punish the defendant for such act, and serve as a warning to prevent others from being guilty of a like act." The court gave one instruction for the defendant as follows:

"11. The jury are instructed that if they believe from the evidence that the remarks of defendant at the council meeting on the 4th of November, 1889, in reference to plaintiff, taken as a whole in their import, referred to him as inspector of curbing and not as superintendent of streets, then your verdict should be for the defendant."

« AnteriorContinuar »