Barnes v. Houchin

• Decision Date: 30 April 1917
• Docket Number: No. 12161.,12161.
• Citation: 195 S.W. 60
• Parties: BARNES v. HOUCHIN.
• Court: Missouri Court of Appeals

195 S.W. 60

BARNES v. HOUCHIN.

No. 12161.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Rehearing Denied May 21, 1917.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

"Not to be officially published."

Action by Ollie Barnes against James A. Houchin. From a judgment for plaintiff, defendant appeals. Affirmed.

Finley & Sapp, of Columbia, for appellant. J. L. Stephens, of Columbia, and Hunter & Chamier, of Moberly, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted by filing a petition in two counts for damages. The second was abandoned and a verdict was rendered on the first for $3,000. This was reduced by a remittitur to $2,200 and judgment was rendered for the latter sum. Defendant appealed.

It appears: That plaintiff owed defendant about $250, and that he instituted an action against her, with attachment in aid, for that sum before a justice of the peace in Boone county. The writ was levied on a "picture show," known as "M Theater" owned and operated by plaintiff in Columbia in that county. Plaintiff did not have the money to pay the claim, and release her property from sale. She, therefore, went to a Mr. Bright, president of the Boone County Trust Company, and arranged with him to borrow $300 with which to pay the attachment, she to secure him on the property. But before the loan was consummated defendant, through his agent and attorney, went to Bright and falsely and maliciously represented to him that plaintiff was not the full owner of the picture show; that a half interest belonged to one Turner. He also stated that this defendant had or was about to attach the property for a claim of $1,250 against Turner. On account of this communication Bright refused to loan plaintiff the sum agreed upon, and the attachment against her property, issued by the justice of the peace, proceeded in its course to a sale by a constable. That defendant's agent and attorney, with the same purpose in view, falsely and maliciously announced, and had announced at the sale, that the property was owned by Turner, and that it was being sold subject to an attachment against him for $1,250. That in consequence of this announcement prospective bidders then in attendance upon the sale refused to bid on the property, and it was sold to defendant for $250.

There was evidence in plaintiff's behalf tending to support the foregoing, and under the familiar rule asserted with so much frequency in this state we must dispose of defendant's demurrer on the theory that such evidence is true, and that, while there may be abundant contradictory testimony in defendant's behalf, we must accept the verdict of the jury as establishing the facts.

Defendant, claiming that plaintiff had set up three causes of action in one count, filed a motion to require her to elect which one she would prosecute. This was overruled. We cannot notice this point for the reason that defendant by afterwards answering waived all defects in the petition save want of jurisdiction and failure to state a cause of action. Paddock v. Somes, 102 Mo. 226, 235, 14 S. W. 746, 10 L. R. A. 254; White v. Railroad, 202 Mo. 539, 561, 101 S. W. 14; Hof v. Transit Co., 213 Mo. 445, 465, 111 S. W. 1166; Cook v. Globe Printing Co., 227 Mo. 471, 525, 127 S. W. 332; Hanson v. Neal, 215 Mo. 256, 270, 114 S. W. 1073; Hubbard v. Slavens, 218 Mo. 598, 621, 117 S. W. 1104. In support of the right to consider his motion defendant cites Flowers v. Smith, 214 Mo. 98, 128, 112 S. W. 499, where such motion was considered, notwithstanding an answer was filed. But the rule, as announced in the foregoing cases of prior date to Flowers v. Smith, has been restated in the decisions subsequent to that case, and we, of course, must follow the later ones.

We think the criticism made of the instructions given for plaintiff are not substantial. The first consists of a hypothesis of the matters relied upon by plaintiff as her ground of complaint and submits them to the jury to be passed upon. It submits substantially the same statements made by defendant's agent to Bright and at the sale, and the same conduct and purpose that is charged in the petition.

If we adopt defendant's theory and regard the action as one for slander of title, a matter upon which the parties seem not to agree, it will not increase the burden assumed by plaintiff in her petition. In action for slander the malice and lack of good faith in the defendant in uttering the charge against the plaintiff's title must be shown. Linville v. Rhoades, 73 Mo. App. 217; Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322; Andrew v. Deshler, 45 N. J. Law, 167; Like v. McKinstry, 41 Barb. (N. Y.) 186. And those requisites were covered by plaintiff's instruction. It is true that the word, "malice," is not used, but every requisite of malice is submitted, and that is sufficient. Linville v. Rhoades, supra, 73 Mo. App. 221.

The second instruction pertains to the measure of damages. It is said the instruction takes the time of levy of the attachment as the time for fixing the value, when it should have taken the time of sale. We are not inclined to regard this as of consequence, for the reason that the two times were so close together; so much so that the instruction regards them as one and uses the expression "at the time it was seized and sold." The further objection is made that the instruction fails to limit the damage to...