Boomshaft v. Klauber
| Decision Date | 30 December 1916 |
| Citation | 190 S.W. 616,196 Mo.App. 222 |
| Parties | JENNIE BOOMSHAFT, Respondent, v. DANIEL W. KLAUBER, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs November 15, 1916
Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Chester H. Krum for appellant.
(1) The verdict was against the evidence. (2) The verdict was against the instructions of the court asked by and given for the appellant. These instructions were given upon the theory that the situation justified the belief, that respondent's conduct showed she was dealing with stolen property. The words used were evidential of malice under the circumstances. Farley v. Thalheimer, 103 Va. 504; Ritchie v Stenins, 73 Mich. 563. (3) The instruction as to the speaking of the words, given for respondent, was erroneous. This follows from the fact, that the petition did not state a cause of action. The instruction omitted the words "and hearing," admitted by the amendment to be essential. (4) The permission given to amend was altogether without authority. Section 1848, Revised Statutes, does not by its terms or by its intendment cover the amendment after verdict of a petition which does not state a cause of action. Bricken v. Cross, 163 Mo. 449-457.
H. A Yonge and Gustave Cytron for respondent.
(1) The petition was good before the amendment. Under the statute it is only necessary to allege in an action for slander that the words were spoken of and concerning the plaintiff, and it is not necessary to charge that they were spoken in the hearing of any one. R. S. 1909, sec. 1837; Arwinger v. Fellner, 46 Mo. 276; Steiber v. Wensel, 19 Mo. 513. But clearly, under sec. 1851, R. S. 1909, the amendment of the petition after judgment was proper. (2) If the plaintiff's instruction is erroneous in failing to require the jury to find that any one heard defendant speak the words imputing the charge of thief to the plaintiff, it is cured by defendant's instructions which assume that the words spoken were heard by others, and submit to the jury the question as to what the hearers understood the defendant to mean by them. Anderson v. Railroad, 161 Mo. 411; Meadows v. Insurance Co., 129 Mo. 97; Shores v. St. Joseph, 134 Mo.App. 12. (3) The charge that plaintiff was a thief is slanderous per se and implies malice. Miller v. Dorsey, 149 Mo.App. 24; Carpenter v. Hamilton, 185 Mo. 603; Grimes v. Throp, 113 Mo. 625; Baldwin v. Frier, 46 Mo.App. 288; Israel v. Israel, 109 Mo.App. 366. (4) The question whether the words were spoken as mere words of abuse and so understood by the hearers was a question of fact which was submitted to the jury by instructions asked by the defendant, and their finding is conclusive on the defendant. Miller v. Dorsey, 149 Mo.App. 45. (5) The fact that defendant in charging plaintiff with being a thief accompanied the charge with an opprobrious epithet, not only does not relieve the charge of its slanderous nature, but aggravates it. Miller v. Dorsey, 149 Mo.App. 24; Israel v. Israel, 109 Mo.App. 366. (6) No explanatory statements were made by the defendant in connection with the defamatory charge, and the circumstances were not such that this court can say as a matter of law that the defendant did not intend to charge the plaintiff with being a thief. Israel v. Israel, 109 Mo.App. 366. Even the authorities cited by the appellant hold that the fact whether the words were spoken in such heat of passion, or under such provocation as to relieve them of their slanderous nature, is a question of fact for the jury. (7) Even if the circumstances tended to show that the defendant claimed that the plaintiff had bought his property from another, and was guilty of receiving stolen property, knowing it to have been stolen, the offense in law is punishable as for stealing the property, and is a species of larceny, and so closely related to the crime of larceny that this technical distinction should not prevail. Miller v. Dorsey, 149 Mo.App. 42.
Action for slander. The petition charges that in a certain discourse which the defendant had with plaintiff, relating to a certain load of scrap iron purchased by plaintiff, It is charged that defendant used these words falsely and maliciously and rehearsed and proclaimed and loudly published these false, slanderous malicious and opprobrious words of and concerning plaintiff and that thereby defendant had charged plaintiff with having committed the crime of larceny. Averring injury to her name, etc., plaintiff prays judgment for actual and compensatory damages in the sum of $ 5000. (The words which we have supplied by dashes were given in full in the petition and in evidence, as well as in the instructions, and while vile and obscene are not counted upon as slander, so that it is unnecessary to set them out).
The answer was a general denial.
There was a trial before the court and a jury and a verdict for plaintiff for $ 150 actual and $ 250 punitive damages. When this verdict came in defendant in due time moved for a new trial on the ground that the court had erred in giving improper instructions asked by plaintiff and in giving others of its own motion, and that the verdict of the jury was against the evidence and the weight of the evidence. Defendant also filed a motion in arrest on the ground that the petition "does not state facts sufficient to constitute a cause of action in this: That while it is averred in the petition that the words complained of were spoken in the presence of divers good and worthy citizens of this State, it is nowhere averred that such persons either heard the words as spoken or understood them when they heard them." Pending the consideration of these motions for new trial and in arrest, plaintiff moved the court to be allowed to amend her petition by inserting the words "and hearing" after the word "presence," making the averment read: "In a certain discourse, which said defendant had with plaintiff relating to a certain load of scrap iron, purchased by plaintiff, and in the presence and hearing of divers good citizens of this State," etc. (Italics ours.) It is set out in this motion that the omission of the words "and hearing," from the petition was first called to the attention of plaintiff and the court by the defendant's motion in arrest of judgment; that the defendant did not file any demurrer to the petition, or object to the introduction of any evidence thereto, on the ground that it failed to state a cause of action, as alleged in his motion in arrest of judgment, and had raised the question of the omission of those words in the petition for the first time in his motion in arrest of judgment; and because the omission from plaintiff's petition was cured by proper instructions to the jury and the evidence adduced at the trial, without objection by defendant. The court sustained this motion and permitted the petition to be amended by the insertion of the words "and hearing" at the place referred to and overruled both the motion for new trial and in arrest, defendant excepting to all of this action of the court. Judgment thereupon followed on the verdict heretofore set out. From this defendant has duly appealed.
The learned counsel for appellant relies upon five points for the reversal of the judgment. The third point is, that the instruction as to the speaking of the words, given for respondent, was erroneous in that it omitted to instruct the jury that the words spoken were spoken in the hearing of others. The fourth point is that the trial court erred in permitting the amendment to be made to the petition by the insertion of the words "and hearing."
In the view we take of the case the only point necessary to determine is the third.
There was evidence tending to show that plaintiff's husband was a dealer in scrap iron or junk in the city of St. Louis, defendant apparently being a much larger dealer in these articles than plaintiff's husband. For brevity, we refer to the premises and business of plaintiff's husband as that of plaintiff, although plaintiff refers to it as "their" business, premises, etc. On the day of the utterance of what is counted on as the slander, defendant had been on a street car and saw one of his drivers, driving a team with a wagon attached, going south on Broadway. He remained on the car until he came to his own place of business and there was informed that one of his drivers had driven off with a load of iron belonging to defendant. Defendant at once ran to catch a Broadway car on Seventh street; missing that, he ran along Broadway and came to an entrance to the yard of plaintiff's place of business by which people drive into the yard with wagons. He saw his driver with a wagon loaded with scrap iron belonging to him in the yard and called to him, "This is a nice way that you are doing." As soon as the driver saw defendant coming into the yard, he jumped off the wagon and ran away and was not present at the difficulty between plaintiff and defendant. Defendant testified that plaintiff's husband was there at the time at scales which were in the yard. In this, however, he was contradicted by plaintiff and by a colored man, who was in the employ of plaintiff, and there is no pretense that plaintiff's husband heard or took any part in the...
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