52 S.W.2d 852 (Mo. 1932), Starnes v. St. Joseph Ry., Light, Heat & Power Co.

Citation:52 S.W.2d 852, 331 Mo. 44
Opinion Judge:Atwood, J.
Party Name:Lyman L. Starnes v. St. Joseph Railway, Light, Heat & Power Company, Appellant
Attorney:Mayer, Conkling & Sprague for appellant. Mytton & Parkinson for respondent.
Case Date:September 03, 1932
Court:Supreme Court of Missouri
 
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Page 852

52 S.W.2d 852 (Mo. 1932)

331 Mo. 44

Lyman L. Starnes

v.

St. Joseph Railway, Light, Heat & Power Company, Appellant

Supreme Court of Missouri

September 3, 1932

Appeal from Buchanan Circuit Court; Hon. L. A. Vories, Judge.

Reversed and remanded.

Mayer, Conkling & Sprague for appellant.

(1) (a) There is no evidence that the slanderous words alleged in the petition and submitted in plaintiff's instruction were communicated to and understood by any one. Walker v. White, 192 Mo.App. 17; Traylor v. White, 185 Mo.App. 325; Cameron v. Cameron, 162 Mo.App. 114; Lemaster v. Ellis, 173 Mo.App. 332; Boyce v. Wheeler, 161 Mo.App. 504; Allen v. Gas Light Co., 209 Mo.App. 173; Nichols v. Railroad Co., 232 S.W. 277. (b) The words stated in the presence of plaintiff's wife (but not believed by her) are not the slanderous words alleged in the petition, and there is a consequent failure of proof. See Authorities under 1a above. (2) The court erred in permitting plaintiff's counsel, in his opening statement to the jury, to state to the jury that the defendant had made an offer of compromise over the objection and exception of the defendant. Sterrett v. Ry. Co., 225 Mo. 115; Jacks v. Link, 291 Mo. 295; Smith v. Shell, 82 Mo. 220; Basset v. Moberly Paving Brick Co., 268 S.W. 647; Marshall v. Taylor, 168 Mo.App. 247; Engel v. Powell, 154 Mo.App. 238. (3) The court erred in permitting counsel for plaintiff, in his argument to the jury, to go outside of the record and the evidence in the case and make improper and prejudicial remarks, statements, charges and insinuations, and in permitting such remarks, statements, charges and insinuations to be considered by the jury, and the court further erred in overruling defendant's objections to such argument, in refusing to rebuke counsel for such argument and in refusing to discharge the jury, all over the objections, exceptions and protests of the defendant. Monroe v. Railroad Co., 297 Mo. 644; Haake v. Milling Co., 168 Mo.App. 177; Stubenhaver v. Rys. Co., 213 S.W. 144; Jackson v. Railroad Co., 206 S.W. 244; Torreyson v. United Rys. Co., 144 Mo.App. 626; O'Hara v. Lamb Const. Co., 197 S.W. 163; Kinney v. Railway Co., 261 Mo. 97; Haynes v. Town of Trenton, 108 Mo. 163; Massengale v. Rice, 94 Mo.App. 430; Evans v. Town of Trenton, 112 Mo. 390; Beck v. Railroad Co., 129 Mo.App. 7; Bergfeld v. Dunham, 201 S.W. 640. (4) The court erred in giving to the jury instruction number four, given at the request of the plaintiff, over the objection and exception of the defendant. The instruction assumes as a fact (1) that the alleged slanderous words were false, (2) that the alleged slanderous words were spoken by Ballard, (3) that Ballard was acting within the scope of his employment in the performance of his duties, (4) that the alleged slander was uttered in the presence of other persons, and (5) instructed the jury to believe the words to be false and untrue McKeon v. Natl. Cas. Co., 216 Mo.App. 507; Warner v. Railroad Co. 218 Mo.App. 351; State ex rel. Ins. Co. v. Cox, 307 Mo. 194; Boland v. Frisco, 284 S.W. 144.

Mytton & Parkinson for respondent.

(1) There was sufficient evidence of publication introduced to warrant submission of the case to the jury, and plaintiff's Instruction 1 required the jury to find every essential fact necessary to sustain a verdict. Cameron v. Cameron, 162 Mo.App. 114; Clements v. Maloney, 55 Mo. 359; Callahan v. Ingram, 122 Mo. 363; Carpenter v. Hamilton, 185 Mo. 612; Mock v. American Ry. Exp. Co., 296 S.W. 859; Israel v. Israel, 109 Mo.App. 382; Allen v. Edward Light Co., 209 Mo.App. 165. The words spoken by Ballard in the presence and hearing of other diverse persons being actionable per se and being unambiguous and plain, are to be taken in the sense which is most obvious and natural, and the testimony of hearers as to what they understood said defamatory words to mean is inadmissible. Foster v. Aubuchon, 221 S.W. 741; Everhart v. Bryson, 244 Mo. 507; 37 C. J. 71, sec. 463; Israel v. Israel, 109 Mo.App. 366; McCollum v. Smith, 199 S.W. 271; Rohr v. Riedel, 210 P. 644; Jones v. Banner, 172 Mo.App. 138; Andreas v. Hinson, 157 Iowa 43. (2) The evidence that Mr. Harrington, one of defendant's head officers, stated that the company would return to plaintiff the $ 18 taken from him by Ballard was not an offer of compromise in any sense, but if it was, it was properly admitted in evidence because it was not made without prejudice or under the faith of pending treaty. Moore v. Gaus & Sons Mfg. Co., 113 Mo. 111; Paris v. Waddell, 139 Mo.App. 291; F. R. Newberry v. Mo. Granite & Const. Co., 180 Mo.App. 672; Joseph P. Chio v. Schaper Bros. Merc. Co., 180 Mo.App. 686. (3) Plaintiff's Instruction 4, "providing that if you find for the plaintiff, you will assess his damages," etc., was proper, as it assumed no fact not covered by plaintiff's Instruction 1 predicating a verdict. Burke v. Robinson, 271 S.W. 1007; Henry v. Railroad Co., 3 S.W.2d 1007; Powell v. Railroad Co., 255 Mo. 453; Bealls v. Railways Co., 228 S.W. 837. (4) Defendant was given greater latitude in its defense than was justified, for the reason that the issue of justification was submitted to the jury by defendant's instructions, when in fact no proper plea of justification was contained in defendant's answer. Reese v. Fife, 279 S.W. 415.

OPINION

Atwood, J.

Page 853

[331 Mo. 46] Lyman L. Starnes sued St. Joseph Railway, Light, Heat & Power Company for slander and obtained a judgment in the Buchanan County Circuit Court for $ 518 actual damages and $ 250 punitive damages. Defendant appealed to the Kansas City Court of Appeals where the judgment was reversed and the cause remanded. [331 Mo. 47] [Starnes v. St. Joseph Ry., Light, Heat & Power Co., 22 S.W.2d 73.] Deeming its decision contrary to the previous decisions of the Springfield Court of Appeals in Paris v. Waddell, 139 Mo.App. 288, 123 S.W. 79, and Hilburn v. Insurance Company, 140 Mo.App. 355...

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