
    Charles C. Crecelius, Respondent, v. Paul H. Bierman, Appellant.
    St. Louis Court of Appeals,
    December 8, 1896.
    1. Practice, Appellate : remanding cause on identical petition: second appeal : res ad judicata. When the appellate court remands a cause on the identical petition, it necessarily decides that the 'petition states a cause of action, and the matter is res acljuchcata, and not reviewable on a second appeal, even had it been erroneously decided on the first appeal.
    2. Practice, Trial: privileged statement: evidence: ruling of trial court. In such case, an objection that the trial court erred in submitting the cause to the jury, because under the undisputed evidence a statement charged as slanderous was absolutely privileged, -svhen the evidence bearing on the question of absolute or relative privilege was the same on both trials, was in effect a complaint that the court below tried the cause according to the discretion of the appellate court.
    
      3. Practice, Appellate: instructions. Instructions which are the same on both trials, and in conformity with the views of the appellate court, as expressed on the first appeal, present nothing for review on the second appeal.
    4. -: frivolous appeal. A question decided against the defendant on a former trial, though not expressly, which even careful counsel might have considered still in the ease, while not reviewable on a . second appeal, will not justify the appellate court in treating the appeal as frivolous. *
    
      Appeal from the St. Louis City Circuit Court. — Hon. ' Leroy B. Valliant, Judge.
    Affirmed.
    
      J. If. Hansbrough for appellant.
    Defendant’s objection to the introduction- of any testimony, at the beginning of the trial, because the petition stated no cause of action, should have been sustained. 8 Am. and Eng. Eney. of Law, pp. 459, 460, 461; People v. Tomlinson, 35 Cal. 503; Rood v. State, 5 Neb. 174; 2 Bish. Crim. Law [Ed. 1892], secs. 545, 546; Whar. Crim. Law [10 Ed.], sec. 696; Smith et al. v. State, 14 Mo. 147; Barnes v. Cratvford, 20 S. E. Rep. (N. 0.) 386; State v. Evans, 39 Pac. Rep. (Mont.) 850; 2 Bish. Crim. Law, sec. 541.
    The statement being prima facia privileged, before plaintiff could recover it devolved upon him to show that the words alleged to have been spoken were not relevant; and not only not relevant, but spoken by the witness under the supposition that they were not relevant, and not in good faith, nor in response to questions asked. New. on Def. Sian, and Lib. 449, sec. 43; 'Calkins v. Summer, 13 Wis. 193; Liles v. Gaster, 42 Ohio St. 631; Hutchinson v. Lewis, 75 Ind. 55; Cooley on Torts [Ed. 1888], secs. 246-249; Steinecke v. Marx, 10 Mo. App. 580; Kirkpatrick v. Eagle, 26 Kan. 384; ’Shortliff v. Stevens, 51 Yt. 501.
    
      The instructions are argumentative, and a comment on the testimony, and thus prejudicial to defendant, and objectionable. Ghouguette v. Barada, 28 Mo. 491; Jones v. Jones, 57 Mo. 138; Leeser v. BoecJchoff, 33 Mo.'App. 223. *
    
      Clopton■ & Trembly for respondent.
    The case was tried in conformity with the opinion of this court when the case was here on a former appeal. Crecelius v. Bierman, 59-Mo. App. 523.
    The questions brought up now were determined on the first appeal, and are res adjuclicata. Hombs v. Corbin, 34 Mo. App. 393; Furt v. Ambrose, Id. 360; Lancaster v. Elliott, .42 Id. 503; Maaclc v. Schneider, 57 Id. 431; Bowling v. Allen, 102 Mo. 213; Beinhart v. Scarrett, 115 Id. 51.
    This is the second verdict. There is nothing in the record showing that the jury erred in the matter of law, nor that they were guilty of misbehavior. 1 R. S. 1889, sec. 2241; State v. Horner, 10 Mo. App. 307; 86 Mo. 71; State ex rel. v. Brainard, 84 Id. 310.
   Rombatjer, P. J.

The action is slander. The plaintiff: recovered two judgments against the defendant on the identical petition. The recovery in each instance was for the same amount. We reversed the first judgment on the sole ground that the slanderous words alleged to have been spoken did not impute any offense to the plaintiff in direct terms, and that it was not shown upon the trial by extraneous evidence that the words thus spoken by the defendant applied to tha plaintiff. We also decided that the words spoken were only relatively and not absolutely privileged, and that but for the above hiatus in plaintiff’s proof at the first trial, the verdict of the jury would have been con-elusive against the defendant. Our opinion on the first appeal is reported in 59 Mo. App., pages 521 and following, to which we refer for the facts of the ease, which are therein fully set out.

It is substantially conceded and at all events it is fully shown by the record, that the hiatus in plaintiff’s proof, which we suggested existed upon .the first trial, was supplied upon the retrial of the cause. As the pleadings and instructions were the same on both trials, and ns no complaint is made as to the rulings of the court upon the evidence except as hereinafter stated, these rulings can alone furnish a ground of complaint. The defendant now assigns for error the following:

First. The court erred in not sustaining defendant’s objection to the introduction of any testimony because the petition did not state any cause of action. This objection is untenable. • By remanding^the cause f°r trial on the identical petition, we necesgai,j]y d.eeid.ed that it did state a cause of action. The matter is res judicata, and not.reviewable on a second appeal, even had it been erroneously decided on the first appeal. Hombs v. Corbin, 34 Mo, App. 393; Metropolitan Bank v. Taylor, 62 Mo. 338, Nor would there be any merit in defendant’s point if it were still open for discussion. Revised Statutes 1889, section 3641; State v. Kattlemann, 35 Mo. 105; State v. Kroeger, 47 Mo. 552. We have no common law felonies in this state, but the offense which the defendant charged upon the plaintiff would constitute the offense of forgery even at common law. The charge was that the plaintiff placed the defendant’s name, purporting to be the defendant’s signature, upon the back of a written money obligation, with a view of making it appear that the same had passed through the defendant’s hands, and that the obligation was discharged in a certain manner according to the defendant’s own admission. This necessarily covered the possibility of the defendant' being defrauded to his injury by the acts charged to have been committed by the plaintiff.

Second. That the court erred in submitting the cause to the jury, because under the undisputed .evidence the statement charged as slanderous was absolutely privileged. As the evidence bearing 0n the question of absolute or relative privilege was the same on both trials, this is in effect a complaint that the court tried the case according to our discretion.

Third. That the court erred in giving instructions 1 and 2 for plaintiff. Since the instructions'were the same' on both trials, and are in con- „ .. ^ ,, formity with our views expressed on the first appeal, the assignment presents nothing for our review.

Fourth. Upon the first appeal of the case one of the judges of this court dissented from the opinion of his associates. Upon the last trial counsel for defendant offered to read in evidence the dissenting opinion. The court would not permit him to do so, and this ruling is also assigned for error. This assignment does not merit any serious discussion.

The plaintiff moves for an affirmance of the judgment with damages. The main proposition now relied on by the defendant for reversal, namely, that the slanderous words charged were legally insufficient under the evidence to impute to the plaintiff the felonious offense-of forgery, finds some support in the decisions of other states. As that question was not expressly decided against the defendant on the former appeal, even careful counsel might have considered that it was still in the case. Hence we are not justified to treat the appeal as frivolous and deny the motion.

The judgment is affirmed.

All the judges concur in the affirmance because the opinion of the court on the last appeal determined the law of this case. Judge Bond, however, desires to say that he adheres to his views expressed.on the former appeal, and concurs in the affirmance only because he recognizes the force of the rule above stated.  