ON MOTION FOR REHEARING. In the motion for rehearing able counsel vigorously urge that the evidence of specific facts and acts admitted in evidence was competent as tending to prove the truth of the alleged slander, and cite, in support of this contention, Nelson v. Wallace,48 Mo. App. 193, and Hess v. Gansz, 90 Mo. App. 439. In the Nelson case it was held that evidence that the slander sued for was only a repitition of a current report of long standing by which the plaintiff's general reputation had become impaired was competent in mitigation of compensatory damages. It was ruled that such evidence was competent in mitigation of compensatory damages because "the injury to reputation forms one of the main elements of compensatory damages." That was not a case involving the point here urged that evidence of other specific acts and facts is competent as tending to prove the truth of the alleged slander.
In Hess v. Gansz, the court, after reviewing the authorities said: "But we think it will appear, from the adjudicated cases which we have cited, that the great preponderance of authority is to the effect that in actions of libel and slander, the defendant should be permitted to introduce evidence that the plaintiff's general reputation was bad, in reference to the matters wherein he alleges he is libeled or slandered; and that general rumors, or general report or suspicion of the truth of the libel or slander charged, may be given in evidence by the defendant in mitigation of the damages. And the reason for this is that the action is for injury to the position and standing of the plaintiff among his fellows, by the utterance or publication of *Page 1289 slanders tending to degrade him in their estimation and perhaps expose him to punishment; and the defendant may show that the plaintiff's general reputation is already bad, with a view of showing that no serious injury can have been inflicted upon him."
We find nothing in the two cases above cited or any other to sustain the contention that evidence of specific acts, facts and circumstances pertaining to other indiscretions is competent to prove the truth of the slander charged. No matter how many acts of indiscretion may have been committed by plaintiff, evidence of such acts would not be competent to prove that she sat on Burrell's lap with her arms around his neck. But it is argued that evidence of specific acts, facts and circumstances would be competent to prove that plaintiff was a "mean woman." In Yager v. Bruce, 116 Mo. App. 473, 93 S.W. 307, cited in the original opinion, the slander charged was that the defendant had said that "any man who voted for plaintiff would vote for a thief and further that plaintiff was a thief." There the defendant in his answer averred the truth of the charge, and in addition charged that plaintiff was guilty of two specific thefts. It was there ruled that "no proof of any specific theft was competent either to justify the speaking or mitigate the damages except those plead in the answer." Also it was ruled in Yager v. Bruce, that defendant had no right "to prove specific dishonorable acts amounting to larceny." There is nothing pleaded in mitigation in the answer here that charges plaintiff with any specific offense. If by her conduct plaintiff has established a bad reputation for virtue and chastity or as a mean woman such reputation may be proved in the usual way, but not by evidence of the specific facts and circumstances which caused the bad reputation.
It is also urged in the motion for rehearing that plaintiff is not in position to complain of the evidence of specific acts, facts and circumstances because timely objection was not made. It is true that while plaintiff and Burrell, as her witness, were on the stand they were asked on cross-examination without objection relative to some matters incompetent, but we do not think that such, in the state of the record here, should be construed as a waiver of the right to object to any of the incompetent evidence, respecting specific acts, facts and circumstances, offered by defendant.
The motion for rehearing should be overruled and it is so ordered. Cox, P.J., and Bailey, J., concur. *Page 1290