Boyce v. Wheeler
| Decision Date | 19 February 1912 |
| Citation | 144 S.W. 119,161 Mo.App. 504 |
| Parties | MRS. JOE BOYCE, Respondent, v. ELLA H. WHEELER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
A. B Wheeler and Charles J. Walker for appellant.
(1) The second count of plaintiff's petition does not state facts sufficient to constitute a cause of action. Plaintiff must allege and prove that the words charged were used in an actionable sense and that the hearers so understood them. Unterberger v. Scharff, 51 Mo.App. 102; Walker v. Hoeffner, 54 Mo.App. 554; Lewis v Humphries, 64 Mo.App. 466. (2) The plaintiff introduced over the objection of the defendants evidence of the effect of the visit of the constable and Mrs. Wheeler upon plaintiff's sick child. This was a matter of special damages and should have been pleaded. Friedman v. Pub Co., 102 Mo.App. 683. (3) The verdict was against the evidence. There was no evidence that Mr. Wyatt, the constable, and Daisy Dodson, the daughter of plaintiff, who were alleged to have heard the words set out in the second count of plaintiff's petition, understood them to impute to plaintiff a criminal offense. This was essential to plaintiff's right or recovery under the second count. (See evidence of Daisy Dodson and evidence of Marion Wyatt.) Lewis v. Humphries, 64 Mo.App. 466; Barree v. Cape Girardeau, 132 Mo.App. 182. The instructions complained of committed to the jury the judicial function of determining whether or not the words alleged and proven constituted a criminal offense. This was palpable error. Eaton-Price Co. v. Trust Co., 123 Mo.App. 117; Cockrell v. McIntyre, 161 Mo. 59; State v. Hardelein, 169 Mo. 579. These instructions leave it to the jury to determine whether or not the words alleged and proven constituted a crime under the laws of this state. White v. Reitz, 129 Mo.App. 307. The only function of the jury is to decide issues of fact and it is error to submit to the jury questions of law or mixed questions of law and fact. Clem v. Railroad, 119 Mo.App. 249.
J. L. Stephens for respondent.
(1) Counsel for appellants urge that the witnesses who testified to having heard the slanderous words spoken should also have testified that they so understand the language Daisy Dodson testified not in substance the language used, but to the words themselves, it would be folly to ask a witness if she understood what she understood. The language used by the defendant Ella Wheeler had no uncertain meaning. A child can understand the slanderous words used much less a grown girl and an officer of the law. These witnesses heard the slanderous words spoken by Ella H. Wheeler, and testified, using the same words. This objection is like unto the entire defense--gausy. It seems that the other five points under points and authorities are but a repetition of the first, in counsels brief for appellant. Only that the court committed error in giving instructions which left it for the jury to determine whether a charge of a criminal offense had been made by the use of the words spoken as testified to. Now if the words testified to by the witnesses who heard them used, were so plain and simple as to be understood by the jury; why find fault that the court did not tell the jury that the words used, if used, by appellant, Ella H. Wheeler constituted a criminal offense or that of larceny. This is a hypercritical criticism. The instructions given by the court for respondent are founded in the law and logical in reason. (2) The verdict of the jury does not appear to be the result of passion or prejudice, on account of disturbing the sick boy by running through the rooms as Mrs. Wheeler did, but it is based upon the conclusive evidence and for the right party.
Plaintiff's petition was for libel in the first count and slander in the second. The judgment was for defendant on the first and it will not be further noticed. But on the second the judgment was for plaintiff and defendant appealed.
The charge in the second count is as follows:--That ...
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