Boyce v. Wheeler

• Decision Date: 08 May 1917
• Docket Number: No. 14453.,14453.
• Citation: 197 Mo. App. 295,195 S.W. 84
• Parties: BOYCE v. WHEELER et al.
• Court: Missouri Court of Appeals

195 S.W. 84

197 Mo. App. 295

BOYCE v. WHEELER et al.

No. 14453.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Mrs. Joe Boyce against Ella H. Wheeler and husband. From a judgment for plaintiff, defendants appeal. Reversed and remanded. See, also, 161 Mo. App. 504, 144 S. W. 119.

H. S. Booth, of Centralia, and A. C. Whitson, of Mexico, Mo., for appellants. J. L. Stephens, of Columbia, and E. S. Gantt, of Mexico, Mo., for respondent.

ALLEN, J.

This is an action for slander. The suit was instituted in the circuit court of Boone county, where a trial was had resulting in a verdict and judgment in favor of plaintiff for $171, but on defendant's appeal to the Kansas City Court of Appeals the judgment was reversed and the cause remanded. Thereafter the case went on change of venue to Audrain county, where a trial before the court and a jury resulted in a verdict and judgment for plaintiff for $2,000 actual damages and $1,000 punitive damages. From this judgment the defendants prosecute the appeal before us. In the testimony reference is made to a trial said to have been had prior to that first above mentioned, at which the jury failed to agree upon a verdict; but the record proper contains nothing with reference thereto.

The amended petition upon which the cause was last tried alleges that:

On June 25, 1910, in the city of Columbia, Boone county, the defendant Ella H. Wheeler, wife of her codefendant, A. B. Wheeler, while in the home of plaintiff, "spoke of and concerning the plaintiff, in the presence and hearing of Daisy Cowden and R. M. Wyatt, the following false and slanderous words, to wit: `This is my bowl and pitcher; you (meaning Mrs. Joe Boyce, the plaintiff) have taken them; you (meaning Mrs. Joe Boyce, the plaintiff) have taken ten dollars ($10) worth of dishes from me (meaning from Ella H. Wheeler, the defendant); you (meaning Mrs. Joe Boyce, the plaintiff) took my decorated set of china; if you (meaning Mrs. Joe Boyce, the plaintiff) don't get it — it's here (meaning in the house of plaintiff) — I will use the law on you' — thereby meaning to charge the plaintiff with the crime of larceny or embezzlement, and was so understood by the persons present hearing said words to charge the plaintiff with the crime of larceny or embezzlement, in the stealing and taking away of said bowl and pitcher and decorated chinaware and dishes, described as aforesaid, the property of defendants."

The prayer is for $2,000 actual and $3,000 punitive damages.

The answer is a general denial.

It appears that plaintiff rented from the defendant Ella H. Wheeler a house in Columbia, Mo.; said defendant and her husband retaining and occupying two rooms therein for a time. After defendants had surrendered these rooms to plaintiff, and while plaintiff continued to occupy this house with her family, defendant Ella H. Wheeler, having procured the issuance of a search warrant, came to plaintiff's home with a constable for the purpose of obtaining some dishes which she claimed as her property. According to the evidence, the constable came upon the front porch of the house and knocked at the door, and when plaintiff appeared he read the search warrant to her, and thereafter he and plaintiff engaged in some conversation concerning the matter. In the meantime, defendant Ella H. Wheeler, having entered by a rear door, went through plaintiff's house searching for the articles which she claimed as her property, and in a few minutes appeared upon the front porch, having in her hand a bowl and pitcher which she had taken from the house. Thereupon the alleged slanderous language is said to have been uttered by this defendant, in the presence of the constable and plaintiff's daughter; and, according to plaintiff's testimony, one Daisy Dodson was also present, but she did not testify.

Plaintiff testified that Mrs. Wheeler shook her fist at plaintiff and, with appearance of much anger, said:

"Here's my bowl and pitcher you took. You pack up and get my dishes you have taken. If you get those dishes and pack them up and let me take them out this evening, I won't use the law on you, but if you don't I will use the law on you."

Later in her testimony plaintiff says:

"She (Mrs. Wheeler) opened the door and stepped out. She set them down in front of my feet and walked up to me this way (indicating), and says, `Here is my bowl and pitcher you have taken, and you get my other dishes,' naming them, decorated chinaware, saucers, bowl, and pitcher, and white cups and preserve stands, and she says: `You pack them up so I can take them out with me this evening, and if you don't I am going to use the law until you do get them.' * * * She kept saying, `You get them and pack them up.' I says, `Mrs. Wheeler, don't you say I stole,' and she says, `You taken them.'"

The constable testified that Mrs. Wheeler said:

"Here's my bowl and pitcher, and you have got my decorated chinaware and dishes (naming them) to the value of $10. If you will pack up my dishes, let me have them this evening, and take them with me, why we will drop this thing (or words to that effect). If you don't, I will use the law on you."

Plaintiff's daughter testified that Mrs. Wheeler said:

"This is my bowl and pitcher you have taken, Mrs. Boyce. You have taken my decorated cups and saucers and other chinaware amounting to $10. If you don't get them, I will use the law on you till I do get them."

The witnesses produced at the trial, who were present and heard the language used by Mrs. Wheeler, testified that they understood the words uttered by her to impute that plaintiff was guilty of having stolen the bowl and pitcher and the dishes. Defendant testified that she merely said to the constable, "This is my bowl and pitcher;" and denied that she spoke the words alleged. It appears that thereafter the bowl and pitcher were returned to plaintiff at Mrs. Wheeler's direction.

Upon the former trial (161 Mo. App. 504, 144 S. W. 119), which resulted in a verdict and judgment in favor of plaintiff for $171, there was neither pleading nor proof that the alleged slanderous words were understood by those who heard them to impute to plaintiff the commission of a crime. Upon appeal from that judgment, the Kansas City Court of Appeals, in an opinion by Ellison, J., said:

"The words above set out do not necessarily charge larceny, or other criminal offense. To charge one with having another's property is by no means a charge of having it criminally. Nor does a charge of having taken another's property obviously or necessarily charge theft or other violation of the criminal law. The additional threat to `use the law on you' might well have meant the institution of a civil action, maybe replevin. So, therefore, the petition should charge, and the evidence should show, that the words were understood by those who heard them to impute to plaintiff the commission of a crime. Lewis v. Humphries, 64 Mo. App. 466, 471; Unterberger v. Scharff, 51 Mo. App. 102; Walker v. Hoeffner, 54 Mo. App. 554."

After the cause was remanded, plaintiff amended her petition in conformity with the views expressed in that opinion — as appears from the allegations of the amended petition above quoted. And, as said, witnesses who were present and heard the words testified that they understood them to impute to plaintiff the commission of a criminal offense; i. e., that plaintiff had stolen the articles mentioned.

I. The first insistence of appellants is that the trial court erred in overruling their objection to the introduction of any evidence, based upon the ground that the petition wholly failed to state a cause of action. The argument advanced in support of this contention appears to proceed upon a misconception of the force and effect of the former decision of the Kansas City Court of Appeals in this case. 161 Mo. App. 504, 144 S. W. 119. It is true, as said by Ellison, J., supra, that the words alleged to have been uttered do not necessarily impute a criminal offense, but on their face they are quite readily susceptible of that meaning. To state a cause of action, however, it was necessary not only to aver, by way of innuendo, that the defendant Mrs. Wheeler thereby meant to charge plaintiff with the crime of larceny, or other criminal offense, but to allege that the words were understood by those who heard them to impute to plaintiff the commission of such crime. "The slander and damage consist in the apprehension of the hearers." See Townsend on Slander and Libel (4th Ed.) p. 641; Walker v. Hoeffner, supra, 54 Mo. App. loc. cit. 560; Lewis v. Humphries, 64 Mo. App. loc. cit. 469; Israel v. Israel, 109 Mo. App. loc. cit. 382, 84 S. W. 453; Julian v. Kansas City Star, 209 Mo. 35, 107 S. W. 496; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, loc. cit 629, 132 S. W. 1143, 33 L. R. A. (N. S.) 216; Peak v. Traubman, 251 Mo. 390, 158 S. W. 656. In the amended petition before us, plaintiff has made the necessary allegations as to the sense in which the words were understood by the hearers, thus making the petition conform to the ruling on the former appeal.

Appellants' counsel seem to think that further allegations by way of inducement were necessary. But we regard it as entirely clear that this view is unsound. No special extrinsic facts are required to be here alleged in order to bring out the defamatory meaning of the words. They are susceptible of an injurious meaning, and it was a question for the jury to determine, under the facts and circumstances in evidence, the sense in which they were used and how they were understood by the hearers. They are alleged to have been spoken in an injurious sense and to have been so understood, and the evidence suffices to warrant a finding supporting these allegations; and after verdict the court will take the words as having been used and understood in the sense in which the jury must have...