Jones v. Banner

Decision Date05 May 1913
Citation157 S.W. 967
PartiesJONES v. BANNER.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Putnam County; G. W. Wanamaker, Judge.

Action by Florence Jennie Jones against John C. Banner. Judgment for the plaintiff, and defendant appeals. Affirmed.

E. M. Harber, of Trenton, and J. W. Clapp and D. M. Wilson, both of Milan, for appellant. Smoot & Cooley, of Kirksville, and J. W. Magee, of Unionville, for respondent.

TRIMBLE, J.

Respondent, a young woman 25 years of age, sued appellant on a petition in four counts, the first of which alleged indecent, lascivious assault, the second and third charged libel, and the fourth slander. At the close of plaintiff's evidence she dismissed the second and third counts charging libel. And at the close of all the evidence a demurrer to the fourth count was overruled and the case submitted to the jury on the first and fourth counts charging assault and slander, respectively. The jury found for appellant on the assault charge, but returned a verdict against him on the slander count assessing compensatory damages at $500 and punitive damages at $250. After an unsuccessful motion for new trial, he has brought the case here on appeal.

The circumstances under which the alleged slanderous words are charged to have been spoken are these: Appellant was a loan agent in Unionville, having his office upstairs directly over the front part of the post office on the south side of the public square. In January, 1910, a man named Mills raised a difficulty in appellant's office, choked a young lady therein, got into a personal encounter with appellant, and finally drew a pistol and fired; the ball going through the floor into the post office below. Appellant applied to J. W. Magee, then prosecuting attorney of Putnam county, to prosecute Mills, but Magee refused to do so. This raised a controversy between Magee, the prosecutor, and appellant, which finally resulted in Magee publishing an article in one of the Unionville papers, in defense of his action in refusing to prosecute Mills, to the effect that Mills was not guilty.

On February 14, 1910, Magee, having secured two unsigned letters alleged to have been written by appellant to plaintiff, filed an information against appellant charging him with blackmail; that is, with attempting to extort money from plaintiff by means of threats made in said letters. (These letters were the same used as a basis for the charges of libel contained in the second and third counts, which were dismissed as hereinabove stated.) Appellant was never brought to trial on this information; the case, after continuances for several terms, being finally abandoned and dismissed. Shortly after this information was filed, however, and while it was pending, Magee became a candidate for renomination as prosecuting attorney at the August primary. Appellant, belonging to the same political party as Magee, vigorously opposed the latter's candidacy, giving as his reason Magee's refusal to prosecute Mills who had raised a disturbance in appellant's office. Meetings were held at different places over the county, and at some of these meetings both Magee and appellant were present and spoke to the voters. At one of these meetings, held about the middle of June at St. Johns, a small town in the west part of the county, Magee in his speech to the voters referred to appellant's opposition to his candidacy and mentioned the information for blackmail he had filed against appellant, and prophesied that he would send appellant to the penitentiary. Appellant, Banner, spoke in reply, and it is in this speech he is alleged to have used the words set out in the fourth count. They are as follows: "I saw her drinking beer with two men about midnight one night. You see what kind of a low, nasty character she has. I was looking through a window at the time I saw her." The colloqium set out that the two letters above referred to were written and published by defendant; that, prior to the speaking of the words, an information had been filed charging defendant with an attempt to extort money from plaintiff by means of the threats contained in the letters; and that the words were spoken while the criminal charge was pending, and while the fact of the filing of the information and the reputation of the plaintiff for virtue and chastity were being discussed. There was also an innuendo averring that by the words spoken the defendant meant to charge the plaintiff with being guilty of fornication and illicit...

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