Hancock v. Blackwell

• Citation: 41 S.W. 205,139 Mo. 440
• Parties: HANCOCK v. BLACKWELL.
• Decision Date: 08 June 1897
• Court: United States State Supreme Court of Missouri

41 S.W. 205

139 Mo. 440

HANCOCK v. BLACKWELL.

Supreme Court of Missouri.

June 8, 1897.

SLANDER — PRIVILEGED UTTERANCES — RELEASE — SETTING ASIDE — PROCEDURE — HARMLESS ERROR — CROSS-EXAMINATION.

1. In an action for slander, it appeared that money was stolen from P.'s house, at which plaintiff was a guest, and the case was reported to the city marshal. Soon afterwards defendant met the marshal on the street, and said to him: "P. and I have talked that matter all over, and I told him that I knew that girl [plaintiff] had taken the money the minute I heard of its disappearance; that, everywhere she goes, money disappears. She is an adventuress of the first water, and destined to become a noted crook." Defendant was not prosecuting his own rights or interest, personally knew nothing of the facts connected with the larceny, and the statements with respect to plaintiff were volunteered. Held, that the utterances were not privileged.

2. In an action for slander, defendant pleaded a release. Replying, plaintiff admitted that she signed the release, but sought to avoid it on the ground that she was induced to execute it by fraudulent representations and undue influence. Before the action was brought, there had been a tender to defendant of the consideration paid by him for the release. Held, that plaintiff could not prosecute her action at law without first having the release set aside by a proceeding in equity, either by original bill, or by amending her petition so as to embrace a count for that purpose.

3. Appellant cannot complain of error which was in his own favor.

4. In an action for slander, where defendant was a witness in his own behalf, it was error to permit plaintiff, over defendant's objection, to cross-examine him as to his domestic affairs; the testimony being of a character to prejudice the jury against defendant, but to throw no light on the issues involved.

In banc. Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by Etta Hancock against J. S. Blackwell. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Turner, Hinton & Turner and Norton & Avery, for appellant. Odon Guitar, Webster Gordon, and W. M. Williams, for respondent.

BURGESS, J.

This is an action for damages for slander, brought by plaintiff to the October term, 1894, of the circuit court of Boone county. The petition was in two counts. The second count was dismissed before trial. The first count, upon which the case was tried, is as follows: "Plaintiff, by leave of court first had and obtained, for her amended petition herein states that heretofore, to wit, on or about the 12th day of January, 1892, at the county of Boone and state of Missouri, it having been reported to E. C. Clinkscales, then marshal of city of Columbia, in said Boone county and state of Missouri, that a larceny of thirty dollars or upwards had been committed in the dwelling house of one George D. Purinton, in said city, he was on the date aforesaid, and at the place aforesaid, approached by the defendant, who then and there entered into a conversation with said Clinkscales touching and concerning said larceny, and did then and there, and in the presence and hearing of said E. C. Clinkscales, maliciously, falsely, and wantonly, speak and publish of and concerning the plaintiff the following false and slanderous words; that is to say: `Purinton and I have talked that matter all over, and I told him that I know that girl [meaning the plaintiff] had taken that money the minute I heard of its disappearance; that, everywhere she goes, money disappears. She is an adventuress of the first water, and destined to become a noted crook,'—then and there intending to charge and impute, and then and thereby falsely and maliciously charging and imputing, to plaintiff, the crime of larceny in a dwelling house as aforesaid, and being then and there so understood by the said E. C. Clinkscales as imputing to and charging plaintiff with the crime of larceny in a dwelling house as aforesaid. By reason whereof, plaintiff says she has been damaged in the sum of twenty-five thousand ($25,000) dollars, for which she asks judgment." Defendant, in his answer, denies generally the allegations of the petition. The answer then avers that on or about the 31st day of March, 1892, plaintiff instituted suit in the circuit court of Boone county against defendant for the same cause of action here sued on, and that thereafter, to wit, on the 5th day of April, 1892, plaintiff, in consideration of a written retraxit signed by defendant, and the sum of ten dollars for the payment of costs incurred up to date in said cause, executed and delivered to defendant her release in writing of that date, in full and complete satisfaction and settlement of all causes of action and demands against the defendant for any and all words and charges theretofore published of and concerning her by defendant, and that she thereupon caused her said action to be finally dismissed, and pleads the same in bar to this action. Plaintiff filed reply to the answer, in which she admits that she signed the release, but alleges that the same, and her signature thereto, were procured by fraud, falsehood, and undue influence brought to bear on her by defendant, and that the same was wholly without consideration. She denied that the $10 alleged in defendant's answer to have been paid her in consideration for said release was ever received by her, and averred that the same was inserted in the release at the instance and suggestion of defendant's counsel, and not at her instance or request; that after the institution of the original suit the defendant had falsely denied the utterance of the slanderous words charged, and had thus induced plaintiff's mother and sister to believe him innocent, and to use their influence with plaintiff to effect a compromise of the case; that defendant had falsely represented that the plaintiff's principal witness was a man of disreputable character, and not to be believed, and that her attorneys were related to such witness, and were unreliable; that defendant had induced plaintiff to consult Judge Alexander Martin, as a disinterested person, on the subject of a compromise, when in fact Judge Martin had been employed as defendant's attorney; that under the influence and advice of defendant's counsel, and the statement by him that her principal witness was a "disreputable man," and the undue influence of her mother, she signed said release. Defendant then filed his motion to strike out that part of the reply which pertains to the manner in which the release was obtained, for the following grounds: (1) Because defendant's answer sets up in bar of plaintiff's action a release and settlement thereof entered into and executed by the plaintiff prior to the institution of this suit; and the plaintiff, by the new matter in said reply, seeks to avoid the operation and effect of such release on account of supposed false representations on the part of the defendant in the procurement thereof, but fails to state facts sufficient to constitute a rescission of such release. (2) Because said reply fails to state facts sufficient to entitle the plaintiff to rescind or repudiate said release. (3) Because said reply fails to state facts sufficient to constitute any fraud on the defendant's part in the procurement of said release. (4) Because said reply attempts to raise issues triable solely in a court of equity, and which are liable to prejudice and mislead a jury. The motion was overruled, and defendant excepted. The trial resulted in a verdict and judgment in favor of plaintiff for $3,500, from which the defendant, after unsuccessfully moving for a new trial and in arrest, appeals. When the case was called for trial, defendant demanded that the issue on the release be first tried by the court, which the court refused to do, and the cause was proceeded with before a jury. It appears from the evidence that in January 1892, plaintiff, her three sisters, and their mother were living in Columbia, Mo., having gone there from Chariton county, Mo., in September, 1884, so that the daughters could attend the university. Plaintiff graduated in 1890, but returned again, and entered for post-graduate work, to fit herself for a teacher. During the different years that she was attending the university, defendant was one of the professors, and plaintiff had several recitations under him. During this time plaintiff and defendant and the Hancock family and the defendant's family became quite friendly. In January, 1892, while plaintiff was visiting the house of George D. Purinton, in Columbia, an amount of money was stolen from the house. Purinton put the matter in the hands of E. C. Clinkscales, who was then city marshal of Columbia, for investigation. Clinkscales testified as follows: "On the 12th day of January, Blackwell stopped me on the street in front of Oppenheimer's cigar store, and asked me: `How about the Purinton burglary?' I told him there was a loss of money up there, and I didn't know who did it, but I was doing my best to find out; and I began to pass on, and he said to me: `You need not pull off from me that way. Purinton and I talked that matter over this morning at the chapel, and I told Purinton I knew that girl had taken that money the moment I heard of its...