Bernhardt v. Armbruster

• Decision Date: 15 February 1949
• Docket Number: No. 27553.,27553.
• Citation: 217 S.W.2d 759
• Parties: BERNHARDT v. ARMBRUSTER et al.
• Court: Missouri Court of Appeals

217 S.W.2d 759

BERNHARDT v. ARMBRUSTER et al.

No. 27553.

St. Louis Court of Appeals. Missouri.

February 15, 1949.

Rehearing Denied March 18, 1949.

Appeal from Circuit Court, Jefferson County; Edward T. Eversole, Judge.

"Not to be reported in State Reports."

Action for libel by William C. Bernhardt against Bernice Armbruster and others. Verdict and judgment for plaintiff, and defendants appeal.

Judgment reversed.

J. W. Thurman, of Hillsboro, for appellants.

Wm. C. Bernhardt, of DeSoto, for respondent.

HUGHES, Judge.

This is a tort action for alleged damages, both actual and punitive, for publishing an alleged libelous affidavit. Tried to a jury, the result was a verdict and judgment for plaintiff for $1 actual damages and $1 punitive damages. Defendants appeal.

Appellants present only two questions in the appeal; (1) whether the petition states a cause of action, and (2) whether the affidavit on which the action is predicated is qualifiedly privileged. These questions will be considered together.

The affidavit alleged to be libelous is set forth in the petition, and is as follows:

"Comes now Bernice Armbruster, and Elmer A. Hopkins both residing on Route #3, DeSoto, Missouri, who being duly sworn upon their oath depose and say that the said Elmer A. Hopkins was a judge of election and the said Bernice Armbruster was a clerk of election on the 9th day of August, 1946, at a certain election held in the McGhean Schoolhouse in Consolidated School District No. 5, Jefferson County, Missouri, for the purpose of voting on a bond issue of $24,000, said bonds to be issued by the School District to erect and construct a schoolhouse for the said Consolidated School District; that said polls were opened at 7:00 a. m. o'clock and were closed at 7:00 p. m. o'clock on said day; that during said time affiants acted in their official capacity as judge and clerk of election along with John Drodinger and Albert E. Walther, Route #3, DeSoto, Missouri, who were also judges and a Mr Owen who was duly appointed and acted as clerk of election; that after the closing of the polls at 7:00 p. m. o'clock on said 9th day of August, 1946, the aforementioned judges and clerks of election counted and tallied the votes cast at said election and according to the tally made at that time, the vote on said bond issue failed to meet the required 2/3 majority to carry the proposition for the issuance of said bonds by a few votes; that thereupon the tally sheets and the ballots were taken by Mr. William Bernhardt, Route #3, DeSoto, Missouri, to his home and at a later meeting that night at about 10:00 p. m. o'clock the judges and their clerks of election were called to reassemble and did reassemble at the house of Dr. Albert E. Walter, Route #3, DeSoto, Missouri, where the ballots had been brought along with the tally sheet by Mr. William Bernhardt and other members of the Board of Directors; that the Directors who accompanied Mr. Bernhardt were Louis Larkin, Route #3, DeSoto, Missouri and John L. Wilson, Route #3 DeSoto, Missouri; that between 7:00 p.m. o'clock and 10:00 p. m. o'clock when said ballots and tally sheet were returned to Dr. Walther's residence as aforesaid, the ballots had been removed from the ballot box and recounted.

"Affiants further state that at said meeting at Dr. Walther's residence at 10:00 p. m. o'clock at the request of the said members of the Board of Directors the ballots were recounted and retallyed by the clerks of the election on the reverse side of the original tally sheet; that the number of votes cast for the bond issue or loan were then found to be in excess of the required 2/3 majority by about 4 or 5 votes.

                                  "Bernice Armbruster
                                  "Elmer A. Hopkins
                

"Subscribed and sworn to before me this 6th day of February, 1947.

                                 "Maxine Clinton
                                    "Notary Public
                

"My commission expires November 25, 1950."

The petition further alleges by way of innuendo, as follows:

"Plaintiff states that by the said matter so published by the defendants as aforesaid, defendants meant to and did charge that plaintiff had unlawfully removed the ballots from the ballot box mentioned in said affidavit and that plaintiff had unlawfully, and fraudulently tampered with, changed and altered the said ballots and the tally sheets mentioned in the said affidavit; thereby charging plaintiff with the crime of tampering with the ballots and of tampering with the tally sheets of the election mentioned in said affidavit."

The evidence is that Consolidated School District No. 5 of Jefferson County, Missouri, was organized in June, 1946. A bond issue election to raise funds to erect a new central school building was held on August 9, 1946. The judges for holding that election were Elmer Hopkins, John Krodinger and Dr. Albert E. Walther, and the clerks were Mrs. Bernice Armbruster and Earl G. Owen. The poll books show that 202 persons voted at the election. On one side of the tally sheets the result of the election is shown to be 133 votes for and 64 votes against the bond issue. This tally and result is crossed out and marked "void". On the reverse side of these tally sheets the result of the election is shown to be 133 votes for and 59 votes against the bond issue. These figures, of course, show that all ballots cast were not counted in either tally, and this is explained to have been caused by a number of ballots having been marked erroneously and therefore not counted. There was a a question raised as to whether the bond issue proposition required 2/3 of all votes cast, whether properly marked or not, or whether it required 2/3 of the votes properly marked and counted. This matter was discussed among the judges and clerks and members of the board of directors who were present.

According to plaintiff's testimony, after the polls closed two of the directors, Wilson and Larkin, took the poll books and tally sheets to the home of plaintiff Bernhardt, who was not only a school director but also secretary of the board. There the result of the election was again discussed, and Bernhardt says that he directed the two directors to take the poll books and ballots to the home of Dr. Walther. The reason for selecting Dr. Walther's home was that it was lighted with electricity. Between 7:00 and 10:00 o'clock that evening the judges of the election and the clerks of the election, and several members of the board of directors, including plaintiff Bernhardt, assembled at Dr. Walther's home, and the judges and clerks again counted and tallied the votes, with the result that there were 133 votes for and 59 votes against the bond issue, not counting the spoiled ballots. Thereafter, there was general discussion as to whether the bond issue had carried or not. And, on February 6, 1947, defendants Addis and Copeland, in Copeland's automobile, took defendants Armbruster and Hopkins to the office of Harry Weier, who was prosecuting attorney of Jefferson County, and the affidavit in question was prepared and signed. The purpose of the affidavit is not clearly shown, but Mrs. Armbruster says that she went to the meeting at Mr. Weier's office "simply because there was so much criticism of the manner in which this election was carried on. I thought it best to go before an authority and give a clear statement." The affidavit was not widely published; however, it was shown to the county superintendent of schools, and to Mr. Wilson, one of the directors, and a Mrs. Evans may have seen it, and a copy was sent to the office of the state auditor.

The Constitution of Missouri, Section 8, Article I, Bill of Rights, Mo.R.S.A., provides that in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts. This provision does not mean that the court is merely an umpire or presiding officer in the trial of such cases. The court has the same duty to determine whether the...