Butler v. Freyman

• Decision Date: 07 April 1924
• Docket Number: No. 14997.,14997.
• Parties: BUTLER v. FREYMAN.
• Court: Missouri Court of Appeals

260 S.W. 523

216 Mo. App. 636

BUTLER v. FREYMAN.

No. 14997.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Gertrude Butler, a minor, by Lillian Spillman, her next friend, against Jennie T. Freyman. Judgment for plaintiff, and, from an order granting a new trial, she appeals. Order affirmed.

Sherman, Stigall & Kranitz, of St. Joseph, for appellant.

Randolph & Randolph, of St. Joseph, for respondent.

ARNOLD, J.

This is an action in damages for slander. At the time of the institution of the suit plaintiff was a minor, under 21 years of age, and the suit was brought in the name of plaintiff by her sister, Lillian Spillman, her legally appointed guardian and next friend.

In July, 1919, plaintiff, then 17 or 18 years of age, went with her elder married sister, said Lillian Spillman, into defendant's millinery store, located on the south side of Felix street between Sixth and Seventh streets in the city of St. Joseph, Mo., for the purpose of buying a hat for the latter. The testimony shows the time to have been in the afternoon between 12:30 and 2 o'clock. While defendant was engaged in trying hats on plaintiff's sister, plaintiff took off her own hat and was trying on hats lying on the counter, though with no intention of buying, and was examining them in a mirror a few feet from where her sister was being waited upon by defendant. While plaintiff had one of defendant's hats on her head, she suddenly remembered that she had an appointment to meet a friend in South St. Joseph, and, fearing she was late, she hurriedly left the store of defendant with a new hat on her head, leaving her own hat on the counter.

The testimony tends to show that plaintiff's that and the new one of defendant which plaintiff had on her head were similar in color, design, and structure. After plaintiff had left the store defendant rushed up to Mrs. Spillman and exclaimed, in the presence of two other women and a girl, "There went a lady out of my store with one of my hats on it was that lady with you. You had it made up to steal my hat. You are stealing my hat." Plaintiff's witness, Mrs. Spillman, quotes the alleged defamatory words as follows: "It was the lady with you; you had it made up; you are stealing my hat."

The petition alleges defamatory words as follows: "There went a lady out of my store with one of my hats on—it was that lady [meaning plaintiff] that was here with you. You had it made up to steal my hat." The alleged defamatory words were spoken to plaintiff's sister just after plaintiff had left defendant's store. Defendant then went out of the store into the street and called a traffic policeman, saying to him that a lady inside her store "had stole." Plaintiff's sister had remained inside the store while defendant went to call the policeman. Defendant then returned to the store with the policeman. In the meantime, due to the excitement, a crowd of considerable proportions had gathered in front of the store. Plaintiff's sister then was required to give her name and address and the name and address of plaintiff, for the use of the police officer and a city detective who, noticing the commotion, had followed the officer into the store.

Plaintiff's own testimony is to the effect that when she reached the place of appointment in South St. Joseph, she looked into a mirror in the window of a store and for the first time since leaving defendant's store, discovered she had on the wrong hat. Thereupon she took off the hat, talked a few minutes with her friend, refused to fill her engagement for the afternoon and then for lack of car fare, walked a distance of a mile and a half to her mother's home. She spent a short time there and then went to the home of her sister (Mrs. Spillman), an additional distance of about eight blocks, and there learned from her sister what had taken place in the millinery store after her departure therefrom. Plaintiff then returned to the millinery store, carrying the hat in a bag, but she did not reach the store until 6 o'clock, or soon thereafter, at which time the store had been closed for the day. The next morning between 9:30 and 10 o'clock, she took the hat back to the store, delivered it to defendant, and received her own hat.

The petition prays actual damages in the sum of $5,000 and punitive damages in a like amount. The answer, in addition to a general denial, alleges that plaintiff came into defendant's store, and, without the knowledge or consent of defendant, left the store taking one of defendant's hats which was not paid for by plaintiff, and not offered to be paid for by plaintiff or by anyone for her. The answer further alleges that the plaintiff left defendant's store, taking with her a hat from said store which belonged to defendant, and that the said Lillie Spillman remained in said store, and defendants says that, upon discovering that one of her hats had been taken away, she immediately made inquiry and efforts to recover said hat and to learn the identity of the party who had worn said hat away as aforesaid, and defendant says that on the following day defendant recovered said hat from plaintiff.

"Defendant further says that in making inquiry for said hat, she mentioned the fact that `a lady went out of my store with one of my hats,' all of which was true in fact, that whatever was said by defendant was spoken without malice toward any one, and only in an effort to recover the hat which the plaintiff had carried with her from defendant's store."

The cause was tried to the court with the aid of a jury. At the close of plaintiff's case, and again at the close of all the evidence, defendant asked and the court refused a peremptory instruction in the nature of a demurrer. The verdict was for plaintiff in the sum of $500 actual damages, and judgment therefor was entered. On motion for new trial the court set aside the verdict and granted defendant a new trial, "for the sole reason," as stated by the court, "that the court committed error in giving plaintiff's instruction No. 2, and the refusal of defendant's instruction No. 3, at the trial of said cause:"

Plaintiff appeals from the order granting defendant a new trial....