ON MOTION FOR REHEARING. The opinion in this case holds that the written document introduced in evidence by plaintiff showed, as a matter of law, that plaintiff was guilty of twisting in the sense in which his petition characterized the word "twisting" — that is — that he was guilty of misrepresentation of facts in twisting policies from one company to another.
Respondent contends that the written document in question did not conclusively show that he was guilty of misrepresentation of facts, and that we erred in so holding. We do not agree with respondent's contention, and therefore adhere to the ruling made in our former opinion for the reasons there given.
[5] Further contention is made that the truth of the charges contained in the alleged libelous letter was not alleged as a defense or in mitigation or otherwise, and for that reason it was not an issue in the case.
We cannot agree with this contention. The gist of plaintiff's petition is that the word twisting includes fraudulent misrepresentations, and that the alleged libelous letter falsely charged plaintiff with fraudulent misrepresentation of facts by referring to him in said letter as a twister. It was necessary for plaintiff in order to make a case for the jury to show, prima facie, that the charge contained in said letter was false. Plaintiff not only failed to establish, prima facie, that the charge was false, but on the contrary he introduced written evidence which, in our judgment, conclusively established that the charge was true. If plaintiff had not established the truth of the charge by his own evidence, then the burden would have been on defendant to plead and prove the truth of the charge if he sought to invoke it as a defense. But where, as in this case, the truth of the charge is established by plaintiff's own evidence, it defeats his right to recover notwithstanding the fact that defendant did not plead the truth of the charge as a defense. The courts so hold. In Kersting v. White,107 Mo. App. 265, 281, 80 S.W. 730, the plaintiff sought to recover damages for an alleged slander. In deciding the case that court, among other things, said:
"There was no allegation in the answer that the communication was a qualifiedly privileged one, hence the defendant could not interpose that as a defense. But if plaintiff by her own evidence conclusively showed the communication was a qualifiedly privileged one and offered no proof whatever of express malice then the court should have nonsuited her, notwithstanding the failure of defendant to plead his privilege."
This rule announces no new doctrine. For example, in negligence cases where contributory negligence appears from plaintiff's own evidence, *Page 1096 no case is made notwithstanding the defendant's failure to plead contributory negligence as a defense.
Plaintiff's argument in support of this contention is, (1) that the truth of the charge was not pleaded as a defense, and (2) that defendant expressly stated in the court below and in this court that the truth or falsity of the representations made by plaintiff was not an issue in the case. From these premises it is strenuously contended that our opinion decides the case on an issue not presented, and is, therefore, a complete and total departure from the theory upon which the case was tried below.
We recognize the rule that, on appeal, parties are bound by the theory upon which the case was tried below, but we are not convinced that our opinion is a departure from that rule. Plaintiff's petition alleged that the charge of twisting leveled against him in the alleged libelous letter was false. Defendant's answer contained, among other things, a general denial. The writing of the alleged libelous letter by defendant was admitted. Plaintiff offered evidence tending to prove that the word "twisting" means to induce a person by misrepresentation or trickery, to drop a policy already in force in a company other than that of the twisting agent for one in the twisting agent's company, and that people engaged in the life insurance business so understand it. If plaintiff had stopped at this point he would have made a case for the jury and the burden would then have been upon defendant to plead and prove the truth of the charge. But when plaintiff went a step farther and conclusively established the truth of the charge by documentary evidence, he carried the burden for defendant and thereby destroyed his own case. For these reasons the demurrer tendered at the close of all the evidence should have been sustained.
Answering the contention that defendant's counsel expressly stated in the court below and in this court that the truth or falsity of the representations made by plaintiff was not an issue in the case, it may be said that issues are not made by mere statement of counsel. Besides, where, as in this case, the plaintiff's own evidence conclusively shows he has no right to recover, the position taken by defendant becomes immaterial.
It is contended that our holding that the alleged charge of rebating is not libelous is in conflict with prior decisions of this court.
In support of this contention our attention is called to Seested v. Post Printing and Publishing Co., 326 Mo. 559, 573,31 S.W.2d 1045, and kindred cases holding that although an alleged libelous article does not charge the commission of a crime or the violation of a law, yet, if it be couched in such language that its probable effect would be to cause the average lay reader to believe that a violation of law was charged, the article is libelous. The cited cases correctly declare the law. Our original opinion does hold that the alleged *Page 1097 charge of rebating was not libelous because it did not charge a violation of the rebating statute. We are also of the opinion that the charge is not calculated to cause the average lay reader to believe that the letter charged respondent with a violation of the rebating statute, because the facts upon which the charge is based are stated in such plain and unambiguous language, that the average lay reader should not be misled thereby.
To the extent of this latter holding, our original opinion should be and is modified.
For the reasons stated, the motion for rehearing should be overruled. It is so ordered. All concur, except Coles, J., not sitting.