Boyce v. Wheeler

• Decision Date: 19 February 1912
• Citation: 161 Mo. App. 504,144 S.W. 119
• Parties: BOYCE v. WHEELER.
• Court: Missouri Court of Appeals

144 S.W. 119

161 Mo. A. 504

BOYCE v. WHEELER.

Kansas City Court of Appeals. Missouri.

February 19, 1912.

1. TRIAL (§ 54)—SPECIAL DAMAGE — SEPARATE COUNTS—RESTRICTION OF EVIDENCE.

Evidence of matters going to special damage claimed in a particular count of a complaint containing counts of libel and slander was improper, where not confined to the count in which it was alleged.

2. LIBEL AND SLANDER (§ 7)—ACTIONABLE WORDS—IMPUTING THEFT.

Where a person merely charged another with having taken her property and that she would have the law on her, the words used were not necessarily a charge of theft or other criminal act, or a threat to institute criminal proceedings; and liability in libel or slander depends upon allegations and showing that the words were understood by hearers to impute a crime.

3. LIBEL AND SLANDER (§ 123)—INSTRUCTIONS—PROVINCE OF JURY—INTERPRETATION OF STATUTES.

In an action for libel and slander, whether words charged constituted an offense against the laws of the state, and whether they constituted a charge of theft or embezzlement, were not proper matters to be submitted to the jury.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Mrs. Joe Boyce against Ella H. Wheeler. Judgment for plaintiff on one count, and defendant on another. From the judgment for plaintiff, defendant appealed. Reversed and remanded.

A. B. Wheeler and Chas. J. Walker, for appellant. J. L. Stephens, for respondent.

ELLISON, J.

Plaintiff's petition was for libel in the first count, and slander in the second. The judgment was for defendant on the first, and it will not be further noticed; but on the second the judgment was for plaintiff, and defendant appealed.

The charge in the second count is as follows: That "defendant in the presence and hearing of plaintiff and other persons, to wit, R. M. Wyatt and Daisy Dodson, falsely, wantonly, willfully, and maliciously spoke of and concerning the plaintiff, Mrs. Joe Boyce, certain false, defamatory, and slanderous words, to wit: `This is my bowl and pitcher; you have taken them. You have taken ten ($10.00) dollars worth of dishes from me. You took my decorated set of china. If you will get them, and pack them up for me, so I can take them home with me this evening, then I will not use the law on you; but, if you don't, I will use the law on you. You have my set of decorated china, and you have to get it; it's here' (meaning in the house of plaintiff)—thereby intending to charge and impute, and then and there falsely, wantonly, willfully, and maliciously charging and imputing, to plaintiff, Mrs. Joe Boyce, of being guilty of a criminal offense, whereby," etc. It...